il 


PRINCIPLES   OF 
PRUSSIAN   ADMINISTRATION 


THE  MACMILLAN  COMPANY 

NEW  YORK   •   BOSTON  •    CHICAGO 
DALLAS   •    SAN   FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON   •   BOMBAY  •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD, 

TORONTO 


•PRINCIPLES 

OF 

PRUSSIAN  ADMINISTRATION 


BY 


HERMAN  GERLACH  JAMES,  J.D.,  PH.D. 

ADJUNCT   PROFESSOR   OF   GOVERNMENT 
IN  THE  UNIVERSITY  OF  TEXAS 


THE    MACMILLAN   COMPANY 
1913 

All  rights  reserved 


COPYRIGHT,  19x3, 
BY  THE  MACMILLAN  COMPANY. 

Set  up  and  electrotyped.    Published  February,  1913. 


J.  8.  Gushing  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


•I 


MY  MOTHER 

IN   LOVING   GRATITUDE 


',459796 


PREFACE 

WE  in  the  United  States  are  standing  at  the  begin- 
ning of  a  period  of  administrative  development.  Our 
individualistic  tendencies  have  ever  tempted  many  of 
us  to  support  the  Jeffersonian  doctrine  that  the  less 
government  our  people  had  the  better  for  the  people, 
and  this  has  been  directed,  not  only  to  the  activities  of 
the  legislative  branch  of  the  government,  but  especially 
also  to  the  administrative  side  of  government.  Our 
motto  has  been,  as  little  interference  by  the  government 
with  the  activities  of  its  citizens  as  possible,  and  this 
view  has  opposed  adequate  regulation  as  well  as  actual 
participation  by  the  government  in  the  various  fields 
of  individual  endeavor. 

The  new  period  which  has  now  begun  does  not  neces- 
sarily signify  a  change  in  the  point  of  view,  but  merely 
perhaps  a  different  conception  of  its  application.  We 
still  desire  as  little  government  as  possible,  but  we 
have  a  different  idea  as  to  how  little  is  possible.  Evi- 
dences of  this  changed  standard  are  found,  for  example, 
in  the  public  service  commissions,  developed  in  New 
York,  Wisconsin,  and  other  states,  whose  function  is  to 


Vlll  PREFACE 

supervise  in  the  interests  of  the  public  those  under- 
takings which  affect  the  public  in  a  particular  way. 

In  the  field  of  municipal  government  many  have 
come  to  see  the  desirability  of  a  different  kind  of  state 
control.  In  place  of  legislative  and  judicial  control, 
recognized  experts  desire  an  administrative  control 
similar  to  that  found  in  European  countries.  This 
would  mean  a  still  further  development  in  the  admin- 
istrative activity  of  the  government. 

With  the  growth  of  our  population  and  the  conse- 
quent increasing  congestion  of  the  individuals  in  the 
state,  restrictions  on  the  individual  in  the  interests  of 
the  community  of  necessity  become  more  numerous. 
The  exercise  of  these  restraints  is  a  function  of  the 
administration,  whose  activity  is  consequently  continu- 
ally increasing  in  this  direction  also. 

What  principles  shall  be  followed  in  the  development 
which  the  administration  thus  seems  destined  to 
undergo?  Shall  it  be  allowed  to  proceed  in  blind  dis- 
regard of  the  treatment  similar  problems  have  received 
and  are  receiving  elsewhere ;  or  is  it  not  better  to  con- 
sider first  what  other  peoples  have  done  in  coping  with 
similar  difficulties  in  their  own  development? 

It  is  without  doubt  dangerous  to  try  to  transplant 
the  governmental  growths  of  one  country  into  the  polit- 
ical life  of  another  country  whose  history  and  institu- 
tions may  be  wholly  foreign  and  unrelated.  But  it  is 


PREFACE  IX 

also  without  doubt  helpful  to  become  acquainted  with 
the  institutions  of  another  country  in  their  historical 
setting  and  present  significance,  to  the  end  that  one 
may  clearly  consider  what  features  might  to  advantage 
be  adopted  and  what  mistakes  might  well  be  avoided. 

That  is  the  whole  purpose  of  this  modest  work,  to 
give  our  students,  our  scholars,  our  legislators,  and  all 
other  persons  interested  in  our  public  affairs  a  general 
insight  into  the  internal  administration  of  a  state  which 
has  been  developing  its  present  system  through  a  period 
of  hundreds  of  years,  a  system  which  has  served  as 
model  for  nearly  all  other  states  in  the  German  Em- 
pire. The  author  has  made  no  attempt  to  criticise 
either  favorably  or  adversely  the  system  as  it  stands. 
He  has  made  no  comparisons  with  the  system  in  our 
own  or  other  countries.  His  sole  purpose  was  to  pre- 
sent in  concise  form  a  more  or  less  detailed  description 
of  the  Prussian  system.  A  valuable  critical  and  com- 
parative study  can  be  undertaken  only  after  a  general 
comprehension  of  the  foreign  system  has  prepared  the 
way  by  furnishing  a  proper  basis. 

A  word  remains  to  be  said  about  the  sources  used 
in  the  preparation  of  the  work.  Indispensable  as  a 
reference  book  for  all  acts  of  administrative  import  is 
the  work  of  Count  Hue  de  Grais,  "Handbuch  der  Ver- 
fassung  und  Verwaltung, "  now  appearing  in  the  twenty- 
first  edition.  For  the  text  of  the  most  important 


X  PREFACE 

laws  and  ordinances  one  can  count  on  the  compilation 
of'  Professor  Stier-Somlo,  "Sammlung  der  Verwalt- 
ungsgesetze  fur  Preussen,"  which  appeared  in  1912. 
Both  works  are  cited  in  the  literature  enumerated  in 
the  introduction. 

Many  helpful  suggestions  as  to  arrangement  and 
treatment  of  the  material  were  obtained  by  the  author 
in  the  excellent  lectures  of  Professor  Gerhard  Anschutz, 
professor  of  public  law  in  the  University  of  Berlin,  on 
German  Administrative  Law  in  the  winter  semester, 

1911-1912. 

H.  G.  J. 

HALLE  A/S., 
JULY,  1912. 


CONTENTS 

PAGE 

INTRODUCTION i 

CHAPTER 

I.    HISTORICAL  SURVEY .13 

II.  xTHE  RELATION  BETWEEN  STATE  ADMINISTRATION 

AND  IMPERIAL  ADMINISTRATION  ....      59 

III.  XTHE  ORGANS  OF  ADMINISTRATION  ....      67 

IV.  ;FoRMS  AND  LEGAL  EFFECT  OF  ADMINISTRATIVE  AC- 

TION   .        .' 152 

V.    PROTECTION  OF  THE  INDIVIDUAL  AGAINST  ACTS  OF 

THE  ADMINISTRATION 191 

VI.  XTHE  LAW  OF  ADMINISTRATIVE  OFFICERS         .        .     204 

VII.  /THE  POLICE  POWER 218 

VIII.  POSITIVE  MEASURES  FOR  THE  FURTHERANCE  OF 
THE  MATERIAL  AND  MENTAL  WELFARE  OF  THE 
INDIVIDUALS  IN  THE  STATE  .  .  .  .259 


ABBREVIATIONS    USED   IN    REFER- 
ENCES   IN   THE   FOOTNOTES 

I.     BOOKS 

ANSCHUTZ  =  G.    Anschiitz,     "  Staatsrecht,"    in    Holtzendorffs 

"Encyklopaedie  der  Rechtswissenschaft."     Ed.  VI,  1904. 
BORNHAK  =  C.  Bornhak,   "  Preussisches  Staatsrecht."     Ed.   II, 

1911. 
FLEINER  =  F.  Fleiner,  "  Institutionen  des  Deutschen  Verwaltungs- 

rechts."     1911. 
HUE  DE  GRAIS  =  Hue  de  Grais,  "  Handbuch  der  Verfassung  und 

Verwaltung."    Ed.  XX,  1910. 
LABAND  =  P.   Laband,    "  Staatsrecht    des    Deutschen    Reichs." 

Ed.  V,  1911. 

MAYER  =  Otto  Mayer,  "  Deutsches  Verwaltungsrecht."     1895. 
MEYER  =  G.   Meyer,   "  Lehrbuch   des   Deutschen  Verwaltungs- 

rechts."     Ed.  Ill,  1910. 
MEYER-ANSCHUTZ  =  G.  Meyer,  "  Lehrbuch  des  Deutschen  Staats- 

rechts."     Ed.  VI,  1905. 
v.  SEYDEL  =  Max  von  Seydel,  "  Staatrecht  des  Konigreichs  Bay- 

ern."     Ed.  Ill,  1903. 

II.     LAWS   AND   COLLECTIONS   OF  LAWS 

A.  L.  R.  =  Allgemeines  Landrecht,  1794;  General  Prussian  Code. 

B.  G.  B.  =  Biirgerliches  Gesetzbuch,  1900;  Imperial  Civil  Code. 
G.  O.  =  Gewerbeordmmg,  1869;  Imperial  Industrial  Code. 

G.  S.  =  Preussische  Gesetzsammlung;  official  collection  of  Prus- 
sian laws  since  1806. 

G.  V.  G.  =  Gerichtsverfassungsgesetz,  1877;  imperial  law  consti- 
tuting the  judiciary. 

xiii 


XIV  ABBREVIATIONS   USED   IN  FOOTNOTES 

INSTR.  =  Instruktion ;  decree  or  order. 

KR.  O.  =  Kreisordnung,  Dec.  13,  1872  (G.  S.  1872,  p.  155),  S.  S. 

p.  916. 
L.  G.  O.  =  Landgemeindeordmmg,    July  3,  1891  (G.  S.  1891,  p. 

233),  S.  S.  p.  722. 
L.  V.  G.  =  Landesverwaltungsgesetz,  July  30,  1883  (G.  S.  1883, 

p.  195),  S.  S.  p.  160. 
O.  =  Ordnung;  ordinance  or  enactment. 
PROV.  O.  =  Provinzialordnung,  June  29,  1875  (G.  S.  1875,  p.  176), 

S.  S.  p.  977- 
R.  G.  BL.  =  Gesetzblatt  fur  das  Deutsche  Reich;  official  annual 

publication  of  imperial  laws. 
ST.  O.  =  Stadteordnung,  May  30,  1853  (G.  S.  1853,  p.  261),  S.  S. 

P-  Si?- 

S.  S.  =  Stier-Somlo,  "  Verwaltungsgesetze  fur  Preussen."     1912. 
ZUST.  G.  =  Zustandigkeitsgesetz,  Aug.  i,  1883  (G.  S.  1883,  p.  237), 

S.  S.  p.  194. 


PRINCIPLES   OF 
PRUSSIAN   ADMINISTRATION 


INTRODUCTION 

THE  term  "  administration "  as  a  function  of  govern- 
ment has  a  twofold  sense,  according  as  it  is  considered 
from  the  point  of  view  of  its  nature  or  from  the  point 
of  view  of  the  organs  by  which  it  is  exercised.  Viewed 
from  the  former,  its  material  side,  administration  may 
be  distinguished  from  the  other  functions  of  govern- 
ment, namely,  legislation  and  adjudication,  as  follows : 
If  we  consider  legislation  as  consisting  essentially  in 
the  establishment  of  general  rules  governing  the  rela- 
tions of  the  members  of  the  state  toward  each  other 
and  toward  the  government,  adjudication  on  the  other 
hand  as  the  mechanical  application  of  these  rules  to 
controversies  that  arise,  administration  may  be  said 
to  consist  in  the  furtherance  of  the  general  welfare  of 
state  and  nation  by  concrete  measures  and  modes  of 
action. 

Administration  in  this  sense,  then,  is  the  whole  of  the 
field  of  state  activity  not  covered  by  the  concepts  legis- 
lation and  adjudication.  It  therefore  comprises  the 
field  ordinarily  designated  as  that  of  the  executive 
branch  of  government  in  the  theory  of  the  separation 


2  i    ,'.  INTRODUCTION 

of  the  powers.  But  its  scope  is  wider  than  that  indi- 
cated by  the  name  "  execution,"  for,  as  we  shall  see, 
it  includes  not  only  the  mere  carrying  out  of  legisla- 
tive enactments,  but  comprises  a  large  field  of  inde- 
pendent action  as  well.  The  term  "  administration,"  in 
other  words,  is  in  reality  wider  than  the  term  "  execution," 
though  often  employed  to  designate  the  same  thing, 
namely,  the  field  of  state  activity  which  is  neither  legis- 
lation or  adjudication. 

For  the  exercise  of  the  function  of  administration 
there  is  a  special  branch  of  government,  called  the 
executive  or  administrative  branch,  or  simply  the  ad- 
ministration. —  This  last  use  of  the  word  to  designate 
the  organ  of  government  must  not  be  confused  with 
the  word  when  denoting  the  function  of  government 
just  described.  —  According  to  the  theory  of  the  sepa- 
ration of  powers,  each  branch  of  government  should 
exercise  those  functions  which  by  their  nature  belong 
to  it.  So  the  legislature  should  concern  itself  with 
legislation,  the  judiciary  with  adjudication,  and  the 
executive  with  administration. 

This  theory  has,  however,  never  been  strictly  applied, 
nor  could  it  ever  be  so  applied,  in  Prussia  or  in  any 
other  state.  There  is,  always,  an  overlapping  or  in- 
tersecting of  the  spheres  of  action  in  the  three  branches 
of  government.  We  see  the  legislature  both  adjudi- 
cating and  administrating,  and  the  administration  both 


INTRODUCTION  3 

legislating  and  adjudicating,  and  this  leads  us  to  a  new 
meaning  of  the  term  ''administration"  as  a  function 
of  government,  namely,  its  formal  meaning.  Thereby 
administration  means  all  functions  exercised  by  the 
administrative  organs,  irrespective  of  the  nature  of 
those  functions.  This  is  the  sense  in  which  the  function 
of  administration  will  hereinafter  be  ordinarily  under- 
stood unless  otherwise  indicated. 

Administration,  then,  is  the  activity  of  the  adminis- 
trative branch  of  government.  But  the  form  and 
extent  of  this  activity  is  subject  to  regulation  by  law, 
for  the  legislative  branch  of  government  in  Prussia  is 
superior  to,  not  merely  coordinate  with,  the  other  two 
branches  of  government.  Therefore  the  administration 
may  never  act  contrary  to  the  law.  Furthermore,  as  a 
result  of  the  constitutional  designation  of  the  legisla- 
ture as  the  proper  organ  for  the  enactment  of  material 
laws,  that  is,  of  measures  establishing  legal  norms  or 
affecting  the  liberty  or  property  of  individuals,  the  ad- 
ministration must  also  act  within  the  law.  That  is  to 
say,  it  can  impose  only  such  duties,  burdens,  or  obliga- 
tions on  individuals  as  the  legislature  has  authorized. 
This  is  the  constitutional  principle  of  "lawful  adminis- 
tration," which  is  of  fundamental  importance  in  deter- 
mining the  legal  effect  of  administrative  acts.  Subject 
to  these  two  limitations,  namely,  that  its  actions  must 
not  be  contrary  to  law  and  that  when  affecting  liberty 


4  INTRODUCTION 

or  property  they  must  be  according  to  the  law,  the  ad- 
ministration has  a  field  of  free  initiative  and  action. 
So,  for  example,  it  has  the  task  of  organizing  its  authori- 
ties and  regulating  their  activities  so  far  as  not  specified 
by  law. 

The  whole  realm  of  administrative  action  falls  into 
five  principal  branches.  These  consist  in  the  adminis- 
tration of  foreign  affairs,  of  military  affairs,  of  the  judi- 
cial system,  of  finances,  and  of  internal  affairs.  The 
branch  of  administration  designated  as  internal  affairs, 
generally  termed  internal  administration,  is  the  field 
of  administrative  activity  with  which  this  work  is 
meant  to  deal. 

Hereafter,  therefore,  in  speaking  of  administration, 
that  special  branch  of  administration  will  be  had  in 
mind,  which  is  called  internal  administration,  a  term 
whose  meaning  is  now  to  be  more  closely  examined. 

Internal  administration  is  the  most  recent  of  the 
five  branches  of  administrative  activity.  The  term 
"police,"  which  originally  denoted  all  state  activities 
in  Germany,  as  distinct  from  ecclesiastical  functions, 
came  to  be  used  in  the  seventeenth  century  to  denote 
what  we  comprise  to-day  under  the  concept  of  internal 
administration.  This  came  about  through  the  gradual 
segregation  of  foreign,  military,  and  financial  affairs  and 
of  matters  of  justice  from  the  general  police  matters. 
Police  therefore  at  that  time  comprised,  as  does  internal 


INTRODUCTION  5 

administration  to-day,  the  totality  of  state  activities 
not  falling  within  any  of  the  four  other  branches. 

There  were,  however,  two  kinds  of  police  activity, 
the  so-called  security  police  (Sicherheitspolizei)  and  the 
welfare  police  (Wohlf ahrtspolizei) .  The  former  was 
intended  to  preserve  the  individual  from  dangers 
threatening  his  person  and  property,  the  latter  to 
further  the  public  welfare  by  the  establishment  of 
institutions  beneficial  to  the  individuals  and  to  society. 
Subsequently,  the  term  "  police"  was  generally  restricted 
to  the  former  of  these  two  functions ;  and  in  the  Prus- 
sian General  Code  of  1794  the  function  of  the  police 
was  denned  to  be  that  of  adopting  the  necessary 
measures  for  the  maintenance  of  public  quiet,  safety, 
and  order  and  for  the  averting  of  dangers  threatening 
the  public  as  a  whole  or  the  individual  members  thereof. 

This  definition,  therefore,  of  the  general  function  of 
the  police,  a  definition  still  valid  in  Prussia  to-day, 
differentiated  the  terms  " internal  administration"  and 
"  police."  The  term  "  police  "  is  consequently  a  narrower 
conception  to-day  than  the  term  "  internal  administra- 
tion," for  the  former  constitutes  a  part  of  the  latter. 
It  does  not,  however,  form  a  separate  and  distinct 
part  thereof,  but  permeates  the  entire  field.  Wherever 
the  personal  liberty  of  the  individual  is  limited  by 
means  of  administrative  compulsion,  there  is  an  exer- 
cise of  the  police  power.  Every  division  of  internal 


6  INTRODUCTION 

administration  has  this  feature  of  compulsion  and  so 
disposes  of  a  measure  of  police  power  for  the  carrying 
out  of  its  purposes.  To-day,  that  form  of  the  police 
power  not  intended  to  insure  the  effectiveness  of  a  given 
branch  of  internal  administration,  but  calculated  to 
protect  society  and  the  individual  against  common 
dangers,  is  termed  security  police.  The  former  type,  in 
contradistinction,  is  called  administrative  police.1 

Internal  administration  is  not  exclusively  carried  on 
by  the  state,  but  also  by  local  bodies  endowed  therefor 
with  certain  powers  of  independent  local  action.  Not 
only  do  these  bodies  exercise  administrative  functions 
directly  for  and  on  behalf  of  the  state  in  matters  of 
state-wide  concern,  but  they  have  also  a  sphere  of  action 
in  purely  local  matters  where  they  act  on  their  own 
behalf,  in  a  large  measure  free  from  interference  by 
state  authorities.  These  local  bodies  are  in  general 
public  corporations  and  their  jurisdiction  has  as  a  rule 
been  granted  in  comprehensive  terms  assigning  all 
matters  of  local  concern  to  their  care,  unless  otherwise 
specified.  Some  obligations  are  imposed  by  law,  but 
aside  from  that,  such  bodies  determine  each  for  it- 
self the  measure  of  their  activity  within  the  limits  of 
local  action.  To  insure  a  measure  of  self-government 

1  Cf.  Meyer- Anschutz,  §  176;  also  Laband,  II,  §  64,  p.  159.  Otto 
Mayer,  I,  p.  i;  Anschutz,  in  Holtzendorff's  "  Encyklopaedie,"  §42, 
p.  6 10. 


INTRODUCTION  7 

in  these  bodies,  a  large  number  of  elective  officers  are 
provided  for,  who  are  then  called  mediate  administra- 
tive officers,  in  contrast  to  the  appointive  officers  of 
state  administration  known  as  immediate  officers,  dis- 
tinctions which  will  be  further  developed  in  the  discus- 
sion of  the  administrative  organization. 

From  the  concept  of  administration  developed  above, 
we  may  proceed  to  consider  the  meaning  of  the  term 
"  administrative  law." 

We  have  seen  that,  with  the  introduction  of  the  con- 
stitutional separation  of  powers,  the  administration  was 
no  longer  its  own  lawmaker,  but  was  bound  by  deter- 
minations of  the  legislature.  The  acts  of  the  legisla- 
ture, then,  constitute  the  legal  limits  within  which  the 
administration  must  move,  and  the  rules  that  delimit 
the  activity  of  the  administration  constitute  the  branch 
of  public  law  known  as  administrative  law.  These 
rules  are  to  be  found  primarily,  of  course,  directly  in 
the  legislative  acts  themselves.  Such  acts  are  ex- 
tremely numerous  and  difficult  to  compile,  for  there  has 
been  no  codification  of  this  branch  of  the  law.  Both 
imperial  laws  and  Prussian  state  laws  embody  these 
rules  and  limitations. 

But  legislative  enactments,  though  the  chief  source, 
are  not  the  only  embodiment  of  administrative  law. 
The  legislature  can  delegate  to  the  administration  itself 
the  power  to  determine  the  field  of  action  of  its  organs. 


8  INTRODUCTION 

This  is  known  as  the  administrative  ordinance  power, 
the  legal  nature  and  extent  of  which  will  be  examined 
later.  The  effect  of  such  ordinances  is  the  same,  as 
long  as  they  are  unrepealed,  as  that  of  laws.  That  is 
to  say,  not  only  are  the  lower  authorities  bound  by 
them,  but  also  the  authority  itself  which  passed  it,  as 
well  as  the  other  branches  of  the  government.  In- 
dividual rights  may  accrue  under  such  ordinances,  if 
legally  valid,  as  well  as  under  acts  of  the  legislature; 
and  the  only  difference  in  legal  effect  between  the  two 
forms  of  enactments  is  that  the  administrative  ordi- 
nances may  at  any  time  be  altered  by  the  enacting 
authority  itself  as  well  as  by  the  legislature. 

A  third  source  of  administrative  law,  quite  similar  to 
the  ordinance  power  of  state  administrative  authorities, 
is  the  ordinance  power  of  the  bodies  for  local  adminis- 
tration, referred  to  above.  These  bodies  have  the 
power  of  passing  local  statutes  or  by-laws  in  the  exer- 
cise of  the  functions  assigned  to  them,  and  within  the 
legal  limits  these  ordinances  also  have  the  force  of  laws. 
A  more  unusual  source  of  administrative  law,  finally,  is 
to  be  found  in  prescriptive  or  customary  law,  which 
may  sometimes  be  the  only  guide  in  determining  a 
question  of  administrative  competence. 

It  is  apparent,  therefore,  that  a  comprehensive 
systematic  presentation  of  all  canons  of  administrative 
law  is  impossible,  and  that  it  will  be  of  little  use  to 


INTRODUCTION  9 

attempt  more  than  a  reference  to  the  principal  sources. 
The  most  important  enactments,  both  legislative  and 
administrative,  will  be  referred  to  directly,  but  for  a 
more  detailed  indication  of  the  references  on  particular 
questions,  recourse  must  be  had  to  the  books  and  other 
literature  cited  in  the  work. 

Special  works  on  Prussian  administration  and  admin- 
istrative law  are  rare.  Chief  among  them  may  be 
mentioned: 

Bornhak,  "  Preussisches  Staatsrecht,"  Ed.  n,  1912,  Vols.  n  and  m. 
v.  Ronne,  "Staatsrecht  der  preussischen  Monarchic,"  Ed.  v,  1899. 
Hue  de  Grais,  "Handbuch  der  Verfassung  und  Verwaltung,"  Ed. 

xx,  1910. 
Bornhak,  "Grundriss  des  Verwaltungsrechts,"  Ed.  m,  1911. 

Works  on  German  administration  as  a  whole,  generally 
with  special  reference  to  Prussia,  include  among  others  : 

Otto  Mayer,  "Deutsches  Verwaltungsrecht,"  1895,  2  vols. 
Georg  Meyer,  "Lehrbuch  des  deutschen  Verwaltungsrechts,"  Ed. 

m,  1910. 
Fritz  Fleiner,  "  Institutionen  des  deutschen  Verwaltungsrechts," 

1911. 
Ernst  v.  Meyer,  "Verwaltungsrecht "  in  Holtzendorff's  "  Encyklo- 

paedie  der  Rechtswissenschaft,"  Ed.  vi,  1904. 
Anschiitz,  "Verwaltungsrecht,"  in  "Kultur  der  Gegenwart,"  1906. 
Loning,  "Lehrbuch  des  Verwaltungsrechts,"  1884. 

Recognized  works  on  German  constitutional  law, 
which  contain  a  treatment  of  administrative  law  as 
well,  include: 


10  INTRODUCTION 

Laband,  "Staatsrecht  des  deutschen  Reichs,"  Ed.  v,  1911. 
Meyer- Anschiitz,  "Lehrbuch  des  deutschen  Staatsrechts,"  Ed.  vi, 

1905. 

Hanel,  "Deutsches  Staatsrecht,"  1892. 
Zorn,  "Staatsrecht  des  deutschen  Reichs,"  Ed.  n,  1895. 
Arndt,  "Staatsrecht  des  deutschen  Reichs,"  1901. 

Among  encyclopaedias  may  be  mentioned: 

Stengel,  "Worterbuch  des  Staats  u.  Verwaltungsrechts,"  Ed.  n, 

1910. 
v.  Bitter,  "  Handworterbuch  der  preussischen  Verwaltung,"    Ed. 

n,  1911. 
Conrad,  Elster,  etc.,  "Handworterbuch  der  Staatswissenschaften," 

1909. 

There  are  various  collections  of  the  more  important 
laws  and  other  acts  relating  to  the  administration; 
enactments,  that  are  scattered  among  all  the  different 
government  publications.  One- volume  collections  are : 

Stier-Somlo,  "  Sammlung  der  Verwaltungsgesetze  fur  Preussen," 

1912. 

Anschiitz-Dochow,  "Organisationsgesetze,"  Ed.  n,  1908. 
Sartorius,  "  Sammlung  von  Reichsgesetzen  Staats  u.  Verwaltungs- 

rechtlichen  Inhalts,"  1910. 

The  enactments  themselves  are  to  be  found  in  the 
official  collection  of  laws,  in  ordinances  and  ministerial 
decrees.  The  collection  of  laws  (Gesetzsammlung) 
begins  with  the  year  1810  and  contains  in  each  volume 
laws  and  royal  ordinances.  The  decrees  of  the  central 
authorities  are  contained  in  the  various  departmental 


INTRODUCTION  II 

sheets  (Ministerialblatter).  The  federal  laws  are  to  be 
found  for  the  years  1867-1870  in  the  federal  legislative 
record  (Bundesgesetzblatt)  and  beginning  in  1871  in 
the  imperial  legislative  record  (Reichsgesetzblatt) .  Ordi- 
nances of  the  superior  authorities  in  the  empire  are  con- 
tained in  the  so-called  central  sheet  (Centralblatt), 
both  for  the  Federation  and  for  the  Empire. 

The  decisions  of  the  supreme  administrative  court 
of  Prussia  have  appeared  in  official  reports  since  1877. 
Digests  of  the  same  have  been  prepared  by 

Kunze  u.  Kantz,  "  Rechtsgrundsatze  des  koniglich  preussischen 
Oberverwaltungsgerichts . ' ' 

v.  Kamptz,  "  Rechtssprechung  des  preussischen  Oberverwaltungs- 
gerichts." 

Finally  there  may  be  mentioned  among  the  numerous 
year  books  and  periodicals: 

"  Archiv  fur  offentliches  Recht." 
"  Preussisches  Verwaltungsblatt." 
"Preussische  Jahrbucher." 


CHAPTER  I 

HISTORICAL  SURVEY  1 

The  Early  Feudal  State 

AT  the  end  of  the  great  migratory  movement  of 
Asiatic  and  European  races  during  the  fifth  and  sixth 
centuries  after  Christ,  there  lived  on  the  right  bank  of 
the  River  Elbe,  in  the  territories  formerly  inhabited  by 
the  Saxons,  the  eastern  peoples  known  as  the  Slavs. 
These  peoples  were  in  the  tenth  century  driven  out  of 
their  lands  by  the  Saxon  Duke  Henry  I,  King  of  the 
German  Realm,  and  by  his  son,  Emperor  Otto  I.  But 
under  the  grandson  of  the  latter,  Otto  III,  these  terri- 
tories were  recaptured  by  the  Slavs,  who  remained 
there  undisturbed  until  another  Saxon,  Emperor  Lothar, 
successfully  undertook,  in  the  first  half  of  the  twelfth 
century,  to  reconquer  the  lost  territories.  In  this  under- 
taking, he  was  effectively  aided  by  the  Askanian  Count, 
Albrecht  the  Bear,  who,  in  return  for  his  services,  was 
in  1134  enfeoffed  with  the  territory  called  the  North- 

1  Cf.  E.  v.  Meyer,  "  Verwaltungsrecht "  in  Holtzendorff 's  "  Encyklo- 
paedie  der  Rechtswissenschaft "  ;  Loening,  "  Verwaltungsrecht "  ;  Born- 
hak,  "  Grundriss  des  Verwaltungsrechts,"  Ch.  I. 

13 


14          PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

march,  on  the  west  bank  of  the  Elbe.  With  this  terri- 
tory were  soon  united  certain  of  the  lands  across  the 
Elbe  to  form  the  Margraviate  of  Brandenburg,  with 
Albrecht  as  first  Margrave. 

This  domain,  the  embryo  of  the  later  Prussian  state, 
comprised  in  1170,  at  the  death  of  Albrecht,  about  a 
third  of  the  territory  included  within  the  present  prov- 
ince of  Brandenburg.  Left  almost  without  inhabitants 
after  the  expulsion  of  the  Slavs,  the  new  margraviate 
was  sorely  in  need  of  a  population,  and  this  the  ruler 
undertook  to  supply  through  military  feudal  coloniza- 
tion. The  ruler  or  overlord,  himself  holding  the  lands 
in  feudal  tenure  from  the  Emperor,  enfeoffed  numerous 
knights  with  large  manors  in  military  tenure ;  that  is, 
on  the  condition  of  their  rendering  certain  military  aid. 
Below  them,  for  the  cultivation  of  the  soil,  free  peasants 
were  colonized  under  the  direction  of  a  great  peasant, 
who  received  a  subordinate  hereditary  office,  with  the 
lowest  judicial  jurisdiction,  as  appurtenant  to  his  estate, 
which  he  also  held  on  condition  of  military  service. 
The  common  peasants  in  their  turn  held  property  only 
in  leasehold,  on  condition  of  paying  ground  rents  and 
rendering  the  lower  military  services.  Cities  arose  like- 
wise, through  systematic  colonization  by  special  organ- 
izers, who  received  in  return  the  office  of  mayor.  The 
cities  were  enclosed  by  a  wall  and  enjoyed  special  trade 
privileges,  such  as  the  market  right.  Thirdly,  the 


HISTORICAL   SURVEY  15 

church  appeared  as  landowner  and  found  it  advantageous 
to  found  cities  and  villages. 

The  government  of  the  margraviate  as  a  whole  was 
carried  on  by  the  ruler  as  military  commander,  with 
the  help  of  a  chosen  body  of  knights  at  his  court,  which 
moved  about  from  place  to  place.  As  scribe,  he  em- 
ployed a  notary  or  chancellor  and  constituted  a  judicial 
court  of  his  trusted  knights.  For  purposes  of  adminis- 
tration, he  divided  the  territory  into  bailiwicks  (Vogt- 
eien),  at  the  head  of  each  of  which  was  'an  overseer, 
appointed  by  him  and  removable  at  his  pleasure.  This 
overseer  exercised  both  military  powers  and  superior 
judicial  jurisdiction  and  was  charged  with  the  preserva- 
tion of  the  peace  and  the  collection  of  the  margravial 
revenues  from  his  bailiwick. 

Gradually,  however,  the  strict  military  organization 
began  to  disintegrate.  The  ruler  himself  disregarded 
more  and  more  his  feudal  relation  to  the  Emperor,  and 
with  the  fall  of  the  Hohenstaufens  in  1268,  followed  by 
the  disappearance  of  all  central  power  for  a  period  of 
years  in  the  German  Empire,  he  regarded  his  position 
wholly  as  an  hereditary  family  estate.  The  formerly 
indivisible  estates  were  now  divided  among  several  sons 
and  in  the  territory  of  the  former  ruler  arose  numerous 
courts  in  the  place  of  one.  But  the  income  from  the 
domains  had  become  insufficient  to  meet  the  multiplied 
expenses,  and  the  feudal  overlord  found  himself  in 


1 6  PRINCIPLES   OF   PRUSSIAN   ADMINISTRATION 

financial  straits.  Not  vested  with  the  right  to  impose 
taxes,  he  was  compelled  to  look  to  his  feudal  tenants  for 
aid  and  began  to  sell  certain  of  his  sovereign  and  feudal 
rights. 

The  vassals  of  the  overlord  were  not  slow  to  take 
advantage  of  his  distress,  and  following  the  example  he 
had  set,  they  proceeded  to  acquire  more  and  more  free- 
dom and  privileges  over  against  their  feudal  lord.  The 
church  territories,  from  the  first  free  from  interference 
by  the  ruler,  constituted  another  break  in  his  power. 
Then  the  knights  of  the  manors  gradually  acquired  the 
feudal  rights  of  the  overlord  in  the  villages  near  by,  as 
well  as  over  the  peasants'  lands  and  persons,  and  took 
over  the  functions  of  the  overseers  in  matters  of  police 
and  justice,  thereby  creating  a  patrimonial  administra- 
tion throughout  most  of  the  rural  territory.  The  cities, 
moreover,  through  their  councils,  which  had  displaced 
the  mayor,  also  acquired  many  of  the  feudal  rights  of 
the  overlord,  within  their  limits  and  in  adjoining  villages. 
Hence  the  overlord,  once  both  sovereign  and  adminis- 
trator of  the  whole  territory,  now  remained  the  local 
authority  only  in  the  lands  not  included  in  any  of  the 
manorial  estates,  in  the  so-called  domains,  which  were 
administered  by  his  wardens  (Amtmann). 

The  ruler,  furthermore,  had  become  dependent  on  his 
former  tenants,  not  only  for  financial  support,  but  also  for 
cooperation  in  all  governmental  matters  which  extended 


HISTORICAL   SURVEY  17 

beyond  his  private  domains.  The  local  magistrates, 
viz.  prelates,  knights  and  representatives  of  the  cities, 
had  already  united  during  the  thirteenth  century  in  the 
territorial  diets  (Landstande) ,  with  which  the  ruler  had 
henceforth  to  deal  as  with  coparticipants  in  govern- 
mental affairs.  Repeated  dynastic  changes,  following 
the  failure  of  the  Askanian  line  in  1320,  still  further 
weakened  the  power  of  the  Margrave,  affording  the 
landed  classes,  in  city  and  country,  opportunity  to 
usurp  what  they  had  not  already  rightfully  acquired ; 
until,  at  the  end  of  the  fourteenth  century,  the  powers 
of  the  Margrave  of  Brandenburg,  elevated  in  1356  to 
the  dignity  of  an  Elector  by  the  Golden  Bull  of  Karl  IV, 
had  been  largely  dissipated  among  the  innumerable 
temporal  and  spiritual  powers  within  the  state. 

The  progress  of  state  disorganization  and  impotency 
was  temporarily  checked  in  1415  by  the  enfoeffment  of 
Count  Frederick  of  Nlirnberg,  of  the  Frankish  line  of 
Hohenzollerns,  with  the  March  Brandenburg.  This 
Margrave  Frederick  I,  the  progenitor  of  the  still  reign- 
ing Prussian  house,  was  able  to  restore  many  of  the  lost 
margravial  rights  and  privileges,  by  means  of  his  power 
as  Frankish  count,  and  not  only  doubled  the  territory 
of  the  March,  but,  in  conjunction  with  the  cities,  re- 
duced the  knights  to  their  former  position  as  feudal  vas- 
sals. His  successor,  Frederick  II,  acquired  additional 
territory,  and,  with  the  help  of  his  knights,  humbled 


1 8  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

the  cities  in  their  turn.  Thus  the  central  authority 
regained  the  superiority  over  the  centrifugal  forces 
within  the  state. 

In  1473,  by  Act  of  the  Margrave  Albrecht  Achilles, 
the  Prankish  lands  of  the  Hohenzollerns  were  sepa- 
rated from  the  March,  Brandenburg  was  declared  in- 
divisible, and  the  succession  fixed  according  to  the 
rule  of  primogeniture.  The  landed  classes  were  still 
further  reduced  in  influence  by  the  adoption  of  mer- 
cenary troops  to  constitute  the  backbone  of  the  army, 
in  place  of  the  former  feudal  militia;  by  the  in- 
troduction of  Roman  law,  which  replaced  the  landed 
gentry  in  justice  and  administration  by  learned  profes- 
sionals ;  and  by  the  financial  independence  of  the  ruler, 
resulting  from  the  large  increase  in  his  domains  through 
the  secularizing  of  Catholic  Church  lands.  Not  only 
did  the  Margrave  acquire  large  additions  to  his  private 
lands  through  the  abolition  of  the  Catholic  sees  in  1539, 
but,  as  head  of  the  new  confession,  he  stepped  into  the 
place  of  power  and  influence  occupied  by  the  Catholic 
Church. 

All  circumstances  were  thus  rapidly  making  for  the 
continued  centralization  of  power,  when  suddenly  an 
unexpected  event  disturbed  the  entire  development. 
The  discovery  of  America,  with  its  unknown  quantities 
of  precious  metals,  caused  a  fall  in  the  value  of  the 
medium  of  exchange,  which  left  the  ruler  impoverished. 


HISTORICAL  SURVEY  1 9 

The  income  from  his  domains  was  greatly  reduced,  he 
still  had  no  general  authority  to  lay  taxes,  and  again  he 
found  himself  compelled  to  turn  to  the  territorial  diets 
for  aid.  Again  the  representatives  of  the  landed  classes 
demanded  extensive  privileges  for  their  assistance. 
They  founded  their  own  territorial  exchequer,  based 
on  beer  taxes  and  hoof  taxes,  out  of  which  they  turned 
over  to  the  ruler  such  sums  as  were  needed  for  the 
government.  The  landed  classes  in  the  country  were 
enabled  to  suppress  the  lower  strata  practically  to  the 
position  of  serfs.  In  the  cities,  the  patrician  class  and 
the  gilds  [usurped  all  important  rights  and  privileges, 
and  the  ruling  classes  in  city  and  country  alike  as- 
sumed, through  their  common  diets,  the  role  of  coun- 
sellors to  the  sovereign  in  all  matters  relating  to  the 
welfare  of  the  realm.  Their  influence  was  further  in- 
creased by  the  acquisition  of  control  over  the  state 
church. 

The  ruler  himself  had  his  own  administrative  organi- 
zation indeed,  but  was  enabled  to  carry  on  the  busi- 
ness of  government  only  by  the  contracting  of  debts, 
which  were  then  assumed  by  the  state  diets.  For  the 
administration  of  his  own  domains,  he  had  a  large  set 
of  officials;  a  separate  court  of  justice;  and,  by  the 
end  of  the  sixteenth  century,  a  regularly  organized 
council  of  nobles  and  law  doctors,  for  the  governmental 
business.  This  body  of  councillors  especially  offended 


20  PRINCIPLES    OF   PRUSSIAN   ADMINISTRATION 

the  privileged  classes,  not  only  because  frequently  made 
up  in  considerable  part  of  foreigners,  but  also,  and 
chiefly,  because  it  denoted  the  beginnings  of  a  system 
of  professional  officials,  by  means  of  which  the  Mar- 
grave would  again  be  enabled  to  assert  his  authority  as 
head  of  the  state.  There  existed,  then,  at  this  time  a 
complete  dualism  within  the  realm. 


The  State  in  the  Seventeenth  and  Eighteenth  Centuries 

The  beginning  of  a  new  period,  in  which  the  pendu- 
lum of  power  again  swung  back  from  the  landed  and 
moneyed  classes  to  the  central  government,  may  be  said 
to  have  begun  in  1604,  with  the  organization  of  the 
privy  council  by  the  Elector  Joachim  Frederick.  This 
council,  composed  of  nine  professional  officials,  generally 
considered  the  earliest  prototype  of  Prussian  central 
administrative  organs,  was  necessitated  by  the  new 
external  relations  into  which  the  March  was  being 
drawn.  Expectations  of  succession  to  the  territories 
of  Cleves  and  Prussia,  as  well  as  other  diplomatic  com- 
plications, brought  Brandenburg  out  of  its  provincial 
isolation  and  quiet  on  to  the  stage  of  international 
affairs,  —  a  development  which  required  an  effective 
body  of  executive  counsellors.  The  new  privy  council, 
charged  with  the  conduct  of  all  branches  of  adminis- 
tration, save  justice  and  church  affairs,  was  indeed  con- 


HISTORICAL   SURVEY  21 


sciously  modelled  on  similar  institutions  in  other  states, 
-  Saxony,  Austria  and  France,  —  but  was,  at  the 
same  time,  the  next  logical  step  in  the  process  of  differ- 
entiation in  Brandenburg,  by  which,  out  of  an  unor- 
ganized mass  of  officials  at  the  Margrave's  court,  had 
developed  special  bodies  for  the  administration  of  the 
judicial  and  financial  affairs  of  the  ruler. 

The  establishment  of  the  permanent__council  was,  at 
one  and  the  same  time,  a  distinct  improvement  in  ad- 
ministrative organization  and  a  blow  to  the  anarchistic 
class  organization  within  the  state,  especially  as  it  was 
soon  followed  by  the  acquisition  of  new  territories, 
equal  in  size  to  the  March  itself,  which  were  connected 
therewith  in  a  personal  union  under  Elector  John  Sigis- 
mund.  In  the  west,  in  the  valley  of  the  Rhine  and  its 
tributaries,  he  succeeded  in  1609  to  Cleves,  the  March 
and  Ravensberg,  and  at  an  equal  distance  to  the  east, 
in  1618,  to  the  feudal  duchy  of  Prussia,  then  vassal  to 
Poland.  The  Peace  of  Westphalia,  1648,  increased  the 
territories  of  the  Margrave  of  Brandenburg  still  more, 
by  the  addition  of  Further  Pomerania,  —  thereby  bridg- 
ing part  of  the  gap  which  separated  Prussia  and  Bran- 
denburg, —  and  of  various  bishoprics  and  archbishop- 
rics. 

These  extensive,  but  widely  separated,  territories, 
united  in  a  mere  personal  union,  were  indeed  a  large 
addition  to  the  outward  power  and  influence  of  the 


22  PRINCIPLES   OF  PRUSSIAN   ADMINISTRATION 

Margrave  as  ruler,  but  they  were  by  no  means  free 
from  foes  within  and  enemies  without.     The  ambitious 
privileged  classes,  —  as  strong  in  the  new  territories  as 
in   the   old,  —  no   less    than   jealous   external   powers, 
threatened  the  security  of  the  state.     It  was  the  task 
that  confronted  Frederick  William,  the  Great  Elector,  \ 
who  succeeded  to  the  government  in   1640,   to  unite 
and  weld  the  territories  and  their  inhabitants  into  a    | 
single  state. 

The  history  of  the  transformation  of  the  Electorate 
of  Brandenburg  and  its  territorial  connections  into  a 
unified  Prussian  state,  during  the  next  half  century,  is 
essentially  a  history  of  military  and  administrative 
development,  for  it  was  through  the  efficient  adminis- 
trative and  military  organization  of  his  territories  that 
the  Great  Elector  subjected  and  united  the  discordant 
elements  in  his  realm  and  established  the  absolute 
monarchy. 

The  Thirty  Years'  War,  with  all  its  devastation  and 
bloodshed,  ruinous  as  it  had  been  for  all  countries  in- 
volved, had  not  been  without  its  decided  advantages 
for  the  adolescent  Prussian  state.     Not  merely  had  it 
greatly  increased  the  territorial  extension  of  the  realm^ 
but  it  had  taught  the  lesson  to  ruler  and  subjects  alike, 
that  a  strong  standing  army  was  necessary  to  the  main-K 
tenance  of  any  governmental  power.     Even  the  hostile 
class  elements  within  the  state  obeyed  the  law  of  self- 


HISTORICAL   SURVEY  23 

preservation  and  laid  taxes,  first  temporarily  and  then 
permanently,  for  the  support  of  their  ruler's  army. 
Both  in  the  March  Brandenburg  itself  and  in  the  new 
territories  as  well,  the  ruler  had  now  gained  a  permanent 
right  to  exact  moneys  for  his  army.  This  army,  it  must 
be  noted,  was  established  as  the  personal  force  of  the 
Elector  of  Brandenburg,  not  yet  as  the  organ  of  the 
united  territories.  A  competent  administrative  organ- 
ization for  military  purposes  had  become  necessary, 
however,  throughout  the  entire  territories,  and  this 
proved  to  be  the  entering  wedge  for  dispossessing  the 
ruling  classes  of  important  functions.  At  this  point, 
the  administrative  history  of  Brandenburg  and  Prussia 
branches  off  from  that  of  the  other  German  states. 

At  the  head  of  the  military  administration  was 
placed  a  commissary  general  (Generalkriegskommissar). 
Under  his  direction  stood  superior  commissaries  in  the 
various  territorial  divisions  and  the  commissaries  in  the 
smaller  circles,  whose  functions  included  the  entire 
commissary  administration  within  their  districts.  Most 
important  of  all  their  duties  was  that  of  receiving  they 
proceeds  of  the  military  taxes  raised  by  the  local  diets. 
In  the  new  territories,  as  well  as  in  the  March,  the 
territorial  administration  was  managed  by  the  so-called 
"  governments  "  —  consisting  of  representatives  of  the 
S privileged  classes  in  city  and  country,  practically  in- 
dependent of  and  generally  in  opposition  to  the  ruler. 


24  PRINCIPLES   OF   PRUSSIAN   ADMINISTRATION 

In  the  old-time  "circles"  of  the  rural  areas,  circle  diets, 
composed  of  representatives  of  the  patrimonial  estates, 
managed  all  local  administration  in  their  own  author- 
ity, especially  the  apportionment  and  collection  of  taxes. 
As  administrative  head,  they  chose  a  knight  for  the 
unsalaried  position  of  circle  director,  called  in  Branden- 
burg, after  1702,  "Landrat."  This  officer  was  there- 
fore a  distinctly  local  magistrate,  representing  the 
landed  interests  alone. 

The  commissaries  in  the  province,  energetic  cham- 
pions of  central  power,  soon  found  it  desirable  them- 
selves to  interfere  in  the  business  of  raising  the  military 
taxes,  which  indeed  existed  only  for  the  benefit  of  the 
ruler's  army,  and  through  a  period  of  continued  juris- 
dictional  conflicts,  succeeded  in  assuming  both  tax  ad- 
ministration and  the  attributive  judicial  jurisdiction  for 
themselves. 

In  the  rural  circles,  the  state  commissary  depart- 
ments did  not  crowd  out  the  local  officials,  but  were 
gradually  put  into  their  hands  for  management.  The 
local  circle  director  (Landrat)  was  intrusted  with  the 
management  of  the  central  tax  administration  and 
thereby  completely  changed  his  character  from  that  of 
a  local  class  official,  hostile  to  the  ruler,  to  a  royal  tax 
official  for  the  circle.  He  still  retained  his  former  desig- 
nation and  still  also  represented  the  interests  and  feel- 
ings of  his  class ;  but  at  the  same  time  he  took  his  place 


HISTORICAL   SURVEY  25 

in  the  bottom  rank  of  the  hierarchy  of  state  adminis- 
trative officials.  The  king  as  a  rule  appointed  to  this 
office  a  knight  of  the  circle  upon  nomination  of  the 
circle  diets,  and  thereby  the  Landrat  acquired  the  dual 
nature  which  long  continued  to  be  his  distinctive  char- 
acter. In  the  cities,  moreover,  state  travelling  com- 
missaries controlled  the  military  tax  administration  for 
the  ruler  there. 

The  next  step  in  the  assumption  of  jurisdiction  and 
powers  by  the  representatives  of  the  central  military 
authority  was  a  natural  one.  If  the  chief  purpose  of 
the  system,  namely,  to  increase  the  military  efficiency 
of  the  state,  was  to  be  most  effectively  served,  the  in- 
come from  the  taxes  needed  to  be  made  a  maximum. 
This  could  be  done  only  through  furthering  the  economic 
welfare  of  the  persons  taxed  and,  with  this  in  view,  the 
zealous  commissaries,  in  country  and  city  alike,  ab- 
sorbed,\in  the  face  of  the  violent  opposition  of  the  ruling 
classes,  We  branch  of  internal  administration  after 
another. 

In  his  own  estates  and  domains,  also,  the  ruler,  un- 
hampered there  by  local  opposition,  carried  on  the 
process  of  centralization  and  unification.  After  the 
model  of  the  central  managerial  chamber  in  Branden- 
burg (Amtkammer),  a  collegial  authority  for  the  finan- 
cial administration  of  his  possessions  was  organized  in 
each  territory,  under  the  direction  of  a  special  com- 


26  PRINCIPLES   OF   PRUSSIAN   ADMINISTRATION 

mittee  of  chamber  counsellors,  later  called  the  privy 
court  chamber. 

All  these  authorities,  military  and  financial,  and  with 
them  the  privy  council,  were  still,  however,  in  their 
essential  nature  Brandenburg  authorities,  though  em- 
ployed in  all  parts  of  the  Elector's  territories.  But 
now  the  centre  of  authority  and  importance  had  grad- 
ually shifted  from  Brandenburg  to  Prussia,  and  this 
for  several  reasons.  Not  only  had  the  geographical 
centre  of  the  ruler's  possessions  moved  farther  to  the 
northeast,  through  the  acquisition  of  Pomerania,  but 
Prussia,  a  powerful  duchy  while  still  vassal  to  Poland, 
had  in  1660  become  a  sovereign  state,  under  the  rule  of 
Frederick  William,  Elector  of  Brandenburg.  While, 
moreover,  Frederick  William's  rule  in  Brandenburg  and 
his  other  possessions  was  still  theoretically  subject  to 
the  sovereignty  of  the  German  Emperor,  enfeebled 
though  .the  latter  was  through  the  Thirty  Years'  War, 
Prussia,  a  wholly  sovereign  duchy,  was  not  even  in  theory 
a  part  of  the  Empire.  As  Duke  of  Prussia,  therefore, 
the  common  sovereign  could  rightfully  assert  dignities 
and  powers  which,  as  Margrave  of  Brandenburg,  he 
could  less  easily  maintain. 

Thus  was  it  possible  that  Frederick  III,  the  otherwise 
far  inferior  successor  of  the  Great  Elector,  could  in 
1701  proclaim  himself  king,  not  of  Brandenburg  indeed, 
but  of  Prussia.  This  dignity  of  the  Prussian  ruler, 


HISTORICAL   SURVEY  27 

combined  with  the  importance  of  the  former  duchy 
itself,  completed  the  change  of  the  united  territories 
from  a  Brandenburgish  state  to  a  Prussian  state,  or 
rather  to  Prussian  states.  Royal  Prussian  authorities 
were  now  the  bearers  of  the  power  of  the  state,  without 
and  within.  The  united  territories  were  externally 
represented  by  royal  Prussian  ministers,  and  internally 
administered  by  royal  Prussian  authorities,  and  the 
combined  territories  bore  the  name  of  the  Royal  Prus- 
sian States. 

But  in  the  organization  of  internal  administration, 
Frederick  III,  after  1701  King  Frederick  I  of  Prussia, 
made  little  progress.  Collegial  bodies  had  already  re- 
placed the  single  commissaries  in  the  provinces  and  the 
central  commissary  officer  was  replaced  by  the  com- 
missariat general,  a  collegial  organ  that  established  the 
organic  unity  of  military  administration,  tax  adminis- 
tration and  the  major  part  of  internal  administration. 
The  administration  of  justice,  which,  so  far  as  it  was 
not  attributive  to  the  administrative  activities  of  the 
commissaries,  had  been  left  to  the  provincial  "govern- 
ments," could  now,  through  gradual  emancipation  from 
the  appellate  jurisdiction  of  the  Empire,  be  united  under 
a  central  court  of  superior  jurisdiction. 

The  privy  council  had  undergone  a  corresponding 
transformation.  At  first  it  had  been  the  highest  ad- 
ministrative body  in  all  matters  except  those  of  church 


28  PRINCIPLES   OF   PRUSSIAN   ADMINISTRATION 

and  justice.  It  was  not  divided  into  departments,  but 
consulted  and  decided  as  a  body  under  the  presidency 
of  the  Elector  himself. 

With  the  advent  of  the  second  king  of  Prussia, 
Frederick  William  I,  in  1713,  began  a  reign  of  more  than 
a  quarter  of  a  century  of  most  significant  development. 
Comparatively  little  indeed  could  be  shown  in  the  way 
of  territorial  expansion,  though  the  acquisition  of  Prus- 
sian Nearer  Pomerania,  in  1720,  was  of  importance. 
But  in  the  field  of  internal  administration  and  develop- 
ment and  of  military  organization  there  were  laid  in 
this  reign  the  foundations  on  which  alone  could  rest  the 
remarkable  structure  to  be  reared  by  his  even  more 
famous  son,  Frederick  the  Great,  and  by  the  later 
Hohenzollerns. 

The  reforms  of  the  new  king  extended  over  all  three 
of  the  chief  divisions  of  the  state  activity,  military 
organization,  management  of  the  finances,  and  internal 
administration.  The  dignity,  influence,  and  power  of 
the  royal  office,  as  yet  unacknowledged  by  many  foreign 
states,  depended  first  of  all  on  an  effective  army  to  pro- 
tect the  still  widely  separated  territories.  If  Frederick 
I  had  failed  to  develop  the  military  efficiency  of  the 
country  to  the  utmost,  Frederick  William  made  this 
his  chief  task.  He  divided  the  country  into  military 
cantons,  in  each  of  which  a  regiment  was  to  be  re- 
cruited and  every  able-bodied  man  within  the  canton 


HISTORICAL   SURVEY  2Q 


was  liable  to  service.  The  nobility,  indeed,  was  legally 
exempt,  but,  as  a  matter  of  fact,  constituted  the  corps 
of  officers.  Sons  of  capitalists  of  a  certain  fortune  were 
exempted  in  the  interests  of  industry.  But  the  popu- 
lation, though  increased  by  colonization  of  foreign 
refugees,  was  not  sufficient  for  the  needs  of  the  army, 
and  a  large  part  of  the  troops  were  still  foreign  mer- 
cenaries. 

This  military  regime  was,  of  course,  very  expensive 
and  required  a  new  system  of  finances  which  should 
yield  a  larger  income.  The  knights,  who  had  so  far 
held  their  estates  tax  free,  were  now  subjected  to  a 
small  ground  tax.  The  municipal  excise  was  extended 
to  all  cities  of  the  realm  and,  in  the  country,  the  quotas 
of  the  local  circles  were  replaced  by  definite  ground 
taxes.  The  peasant  bore  the  heaviest  taxes,  the  mu- 
nicipal citizen  somewhat  less,  and  the  landed  gentry 
least  of  all.  As  highest  controlling  authority  was  estab- 
lished a  central  chamber  of  accounts. 

In  the  domain  of  internal  administration,  constant 
friction  had  existed  between  various  classes  of  adminis- 
trative officers.  The  extremely  active  commissaries 
were  in  continued  jurisdictional  conflicts  with  the 
judicial  bodies,  on  the  one  hand,  and  with  the  domain 
chambers,  on  the  other.  The  first  class  of  disputes 
was  eliminated  by  various  special  orders,  but  the  latter 
difficulties  needed  for  their  solution  the  comprehensive 


30  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

measures  of  1723,  which  united  the  two  conflicting 
classes  of  officials. 

The  change  began  with  the  combination  of  the  cen- 
tral authorities  for  domain  administration  with  that  of 
the  commissariat  system  into  a  supreme  directorate 
general  for  war  and  domains,  generally  called  direc- 
torate general.  This  was  a  collegial  body  presided 
over  by  the  king  himself  and  consisting  of  four  depart- 
ments, at  the  head  of  each  of  which  stood  a  minister. 
Each  minister  had  a  number  of  expository  counsellors 
with  whom  he  prepared  reports  for  the  directorate  as 
a  whole,  which  alone  was  competent  to  adopt  measures. 
This  directorate  general  controlled  the  entire  regula- 
tion of  financial  and  internal  administration,  and  the 
various  individual  branches  were  divided  among  the 
departments  for  investigation  and  report,  partly  ac- 
cording to  provinces,  partly  according  to  subject 
matter. 

Foreign  affairs  were  put  into  the  hands  of  a  so-called 
cabinet  ministry,  instead  of  being  managed  by  two 
members  of  the  privy  council,  as  under  the  Great 
Elector  and  his  successors. 

Matters  of  justice,  church  and  education,  which,  as 
has  been  seen,  were  left  to  the  old  "governments"  in 
the  provinces  when  the  commissaries  assumed  all  other 
administrative  functions,  had  also  been  put  under  the 
central  authority  of  special  members  of  the  privy 


HISTORICAL   SURVEY  3! 


council.  These  councillors  of  justice,  four  in  number, 
now  constituted  the  state  ministry  of  justice. 

By  these  changes,  the  old  privy  council,  now  called 
the  privy  ministry  of  state,  had  altered  its  character 
as  well  as  its  name.  Its  functions  were  now  exercised 
by  the  three  special  central  authorities,  the  directorate 
general,  the  cabinet  ministry,  and  the  ministry  of 
justice,  and  it  had  come  to  signify  merely  the  totality 
of  all  the  various  ministers.  It  still  existed  and  met 
as  a  legal  body,  indeed,  acted  in  cases  of  administrative 
discipline  and  deliberated  on  matters  submitted  by  the 
king  or  by  individual  ministers,  but  it  no  longer  played 
a  part  in  the  preparation  of  legislation. 

The  union  of  the  highest  domain  and  commissary 
authorities  into  the  directorate  general  was  soon  fol- 
lowed by  the  establishment  of  similar  organs  in  the 
provinces  called  war  and  domain  chambers,  collegial 
bodies  for  the  entire  internal  administration,  including 
finances.  By  their  establishment  was  solved  the  con- 
flict between  the  two  classes  of  officials  which  had 
materially  disturbed  the  unity  of  the  administrative 
system.  Territorial  divisions,  called  chamber  depart- 
ments, were  constituted  for  administrative  purposes, 
corresponding  in  general  with  the  ancient  divisions  and 
hence  of  greatly  varying  size.  At  the  head  of  each 
chamber  stood  a  president  —  sometimes  called  su- 
perior president  when  head  of  several  chambers  —  and 


32  PRINCIPLES    OF   PRUSSIAN  ADMINISTRATION 

associated  with  him  one  or  more  directors  and  a  num- 
ber of  counsellors  and  judicial  officers,  all  of  whom 
acted  as  a  body,  without  division  into  committees. 

In  the  administration  of  the  rural  areas,  the  circle 
director,  as  organ  of  the  commissariats,  acquired  juris- 
diction over  the  domains  —  now  generally  administered 
by  lessees  —  which  had  by  this  time,  for  the  most  part, 
been  included  in  the  circles.  Thereby  was  completed, 
down  through  the  lowest  instance,  the  union  of  com- 
missariat and  domain  administration.  Strictly  judicial 
matters  were  put  into  the  hands  of  judicial  officers; 
but  all  matters  of  police  and  finance  administration  in 
the  country  were  in  the  hands  of  the  circle  director, 
this  dual  representative  of  the  landed  classes  over 
against  the  king,  on  the  one  hand,  and  the  king  over 
against  the  local  ruling  classes,  on  the  other  hand.  The 
king  had  raised  his  bureaucratic  structure  on  the  basis 
of  the  established  class  divisions  of  society. 

The  cities,  moreover,  had  shown  the  utmost  need  of 
reform  since  the  time  when  state  officials  first  made 
their  entrance  there  with  the  introduction  of  the  excise 
in  the  seventeenth  century.  The  patrician  classes  and 
the  gilds  had  run  the  cities  as  closed  corporations  for 
private  gain,  at  the  expense  of  the  non-burgesses.  This 
was  now  altered,  and  the  formerly  all-powerful  and  in- 
dependent board  (Magistrat)  remained,  indeed,  but  was 
transformed  into  a  mere  organ  of  the  state  administra- 


HISTORICAL  SURVEY  33 

tion  under  the  supervision  of  the  tax  commissioners, 
travelling  commissioners  who  came  at  least  twice  a  year 
to  each  city.  So  while  in  the  country  there  still  remained 
a  large  element  of  local  autonomy,  in  the  cities  it  had 
practically  been  displaced  by  direct  state  administration. 
The  agents  of  the  state  government  were  still  very 
diligent  in  protecting  the  lower  classes  in  city  and 
country  with  a  view  to  furthering  their  economic  wel- 
fare. The  aim  of  the  state  herein  was  to  increase  their 
taxability  to  meet  the  enormous  expenses  of  the  army, 
which,  in  turn,  was  requisite  to  establish  and  maintain 
the  authority  and  power  of  the  Prussian  king  as  a  ruler 
among  European  nations. 

f'In  1740,  Frederick  William  I  was  succeeded  by  his 
son,  Frederick  II,  called  the  Great.  The  efficient  organi- 
zation of  military  and  internal  affairs  developed  under 
his  father,  answered  the  needs  of  Frederick's  rule  as  well, 
and  so  there  were  undertaken  but  few  changes  of  an 
administrative  nature.  The  ruling  class  in  the  state 
was  the  nobility,  which  filled  all  offices  in  both  the  civil 
administration  and  in  the  army.  The  king's  energy 
and  thought  were  chiefly  directed  toward  the  terri- 
torial aggrandizement  of  his  state  and  the  increase  of 
population,  which  he  recognized  as  prime  necessities  for 
the  development  of  the  same.  An  efficient  army  and 
well-filled  coffers  were  the  immediate  ends  he  strove 
for.  His  activities  in  the  field  of  finance  reform  and  of 


34  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

internal  development  were  directed,  consciously  and 
avowedly,  toward  increasing  the  power  of  the  state 
within,  in  order  to  make  possible  a  policy  of  expansion 
without. 

In  the  first  year  of  his  reign,  he  marched  an  army 
into  Silesia  and  compelled  Maria  Theresa,  in  1742,  to 
surrender  upper  and  lower  Silesia.  He  based  his  claim 
to  conquest  on  an  ancient  treaty  of  inheritance  between 
Brandenburg  and  the  ruler  of  certain  of  the  Silesian 
duchies.  He  was  not  allowed,  however,  to  enjoy  his 
conquests  long  in  peace  and  not  until  after  a  series  of 
wars,  terminating  with  the  end  of  the  Seven  Years' 
War  in  1763,  did  he  retain  an  undisputed  hold  on  the 
Silesian  territories.  East  Frisia  had  meanwhile  been 
added;  and,  in  1772,  he  acquired,  by  the  first  partition 
of  Poland,  the  extensive  territories  of  West  Prussia, 
and  adjacent  districts,  uniting  thereby  old  Prussia 
with  the  body  of  his  territories.  These  acquisitions, 
along  with  some  other  minor  additions,  had  increased 
his  territories  by  more  than  one-half ;  and  this  increase, 
together  with  Frederick's  fame  as  a  general,  had  brought 
Prussia  into  the  rank  of  a  world  power. 

The  continual  wars,  however,  had  been  a  severe 
drain  on  the  resources  of  the  nation ;  and,  in  the  inter- 
vals of  peace,  Frederick  bent  all  energies  toward  further- 
ing the  prosperity  of  the  country.  Industry  and  trade 
were  fostered,  internal  improvements  were  undertaken 


HISTORICAL   SURVEY  35 

on  a  large  scale  and  colonization  was  encouraged.  But 
his  military  organization  and  his  economic  legislation 
were,  like  those  of  his  father,  directed  toward  the  in- 
crease of  the  power  of  the  state.  Even  his  reforms  in 
the  administration  of  justice,  whereby  royal  participa- 
tion in  judicial  controversies  was  discontinued,  were 
restricted  to  civil  suits,  because  security  of  justice  in 
those  matters  was  necessary  for  the  growth  of  business, 
which  he  desired  so  much  as  a  sound  financial  basis  for 
the  state. 

But  the  gulf  between  the  state  and  the  mass  of  the 
people  had  become  more  noticeable.  Frederick  looked 
upon  his  nobility  alone  as  the  proper  source  for  his 
officials,  civil  and  military,  and  in  place  of  the  antago- 
nism between  the  nobles  and  the  crown,  that  still  existed 
under  Frederick  William  I,  there  had  developed  the 
greatest  confidence.  Frederick  regarded  the  nobility  as 
the  protectors  and  preservers  of  the  state,  and  valued 
and  favored  them  accordingly.  The  burgesses  did  their 
part  in  the  maintenance  of  the  state  by  contributing  the 
major  part  of  the  needed  revenue,  while  the  peasants 
constituted  the  body  of  the  army.  For  the  proper 
fulfilling  of  these  functions  the  lower  classes  were  also 
accorded  a  large  measure  of  protection. 

Frederick's  government  was  in  the  highest  measure 
autocratic.  He  added  five  new  departments  to  the 
existing  four  in  the  directorate  general,  with  a  minister 


36  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

for  each.  But  actually  Frederick  was  his  own  minister 
in  all  important  matters.  His  so-called  ministers  and 
their  counsellors  were,  in  reality,  secretaries  and  clerks, 
who  were  rarely  asked  for  advice  and  who  had  to  yield 
absolute  obedience  to  his  wishes.  Opposition,  or  vari- 
ance from  his  expressed  opinions  was  not  countenanced. 
He  did  not  himself  appear  in  the  meetings  of  the  coun- 
cil, but  received  reports  of  the  proceedings  through  his 
ministers  of  the  cabinet  and  then  made  his  own  deci- 
sions. The  existing  administrative  organization  was 
extended  to  the  new  territories. 

But  the  organization  of  the  state,  efficient  as  it  had 
proved  under  Frederick  II  and  his  predecessor,  Frederick 
William  I,  nevertheless  contained  elements  of  weakness, 
especially  for  the  enlarged  world  power  which  Prussia 
had  now  come  to  be.  The  cumbersome  collegial  or- 
ganization of  administrative  authorities  and  the  now 
impractical  division  of  business,  partly  according  to 
provinces,  partly  according  to  subject  matter,  could  con- 
tinue to  do  the  work  of  the  state  only  so  long  as  an 
individual  of  Frederick's  personality  and  ability  stood 
as  the  guiding  spirit  at  the  head.  Unfortunately  for 
Prussia,  when  Frederick  the  Great  was  succeeded  in  1786 
by  his  nephew,  Frederick  William  II,  the  direction  of 
affairs  fell  to  a  man  of  inferior  caliber.  He  had  neither 
the  capacity  nor  the  personality  necessary  to  direct  the 
government  of  the  Prussian  state,  and  the  germs  of  dis- 


HISTORICAL   SURVEY  37 

integration  which  were  smothered  under  the  dominat- 
ing personality  of  Frederick  II  now  began  their  destruc- 
tive work.  The  army  degenerated,  the  central  adminis- 
trative authorities,  divided  into  independent  ministries, 
were  filled  with  a  spirit  of  jealousy  and  antagonism,  and 
the  king,  instead  of  ruling  through  his  ministers,  was 
ruled  by  them.  Still  further  acquisitions  of  land  in  the 
East,  resulting  from  the  second  and  third  partitions  of 
Poland,  greatly  increased  the  difficulties  of  administra- 
tion and  emphasized  the  need  of  a  different  plan  of 
government.1^ 

When  Frederick  William  II  was  succeeded,  eleven 
years  later,  by  his  son,  Frederick  William  III,  the  need 
for  a  thoroughgoing  reform  of  the  state,  in  its  social, 
economic,  and  political  aspects,  had  become  apparent. 
The  new  king,  realizing  in  a  measure  the  weaknesses 
in  the  state,  attempted  to  remedy  them,  and  it  is  to 
be  noted  that  many  of  the  ideas  advanced  in  the  first 
years  of  his  reign  in  fact  materialized  in  reforms  at  a 
later  time.  But  he  lacked  the  initiative  and  firmness 
requisite  to  introduce  these  far-reaching  innovations, 
and  not  until  after  the  humiliation  of  Prussia  by  Napo- 

1  Of  considerable  significance  was  the  enactment  of  the  General  Code 
(Allgemeines  Landrecht)  in  1 794,  which  comprised  also  the  administrative 
law  of  that  time.  Of  especial  interest  is  the  definition  of  the  function  of 
the  police  in  §  10  of  Part  II,  Title  17,  a  definition  that  is  still  in  effect 
to-day,  through  adjudication  by  the  Prussian  Supreme  Administrative 
Court.  Cf.  p.  160,  n.  2,  3. 


38  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

leon  in    1807   was  the  reform  programme  —  by   then 
universally  conceded  to  be  a  necessity  —  actually  begun. 


From  1807  io   l872-     The  Beginning  of  the  Latest 
Reform 

By  the  Peace  of  Tilsit,  in  1807,  Prussia  lost  over 
half  of  her  territories  and  population.  French  troops 
were  to  remain  in  Prussia  until  the  war  indemnity  of 
indeterminable  amount  was  paid  and  Prussian  mili- 
tary forces  were  to  be  limited  to  a  standing  army  of 
forty- two  thousand  troops.  These  were  the  difficult 
circumstances  under  which  a  reorganization  of  the 
state  had  to  be  begun,  through  which  new  life  was  to 
be  infused  into  the  debilitated  organism,  which  had 
gone  to  pieces  under  the  strain  of  the  Napoleonic  Wars. 
The  credit  for  the  developments  which  now  marked  the 
beginning  of  a  new  period  in  Prussian  administrative 
history  was  due  in  the  largest  measure  to  two  states- 
men, Baron  von  Stein  and  Count  Hardenberg.  Baron 
von  Stein,  whose  efforts  were  more  exclusively  centred 
on  the  problems  of  administrative  reform,  entered  the 
Prussian  administrative  service  under  Frederick  the 
Great.  Through  many  years  of  experience  he  had 
come  to  know  the  system  in  all  thoroughness,  its  quali- 
ties and  its  defects,  and  had  early  seen  the  need  of 
extensive  reforms. 


HISTORICAL   SURVEY  39 

Before  the  outbreak  of  the  war  with  Napoleon,  in 
October,  1806,  Stein  was  appointed  minister  of  finance. 
He  immediately  submitted  a  memorial  denouncing  the 
defects  of  the  cabinet  administration  and  demanding  a 
reorganized  council  of  state  standing  above  the  indi- 
vidual ministers.  His  further  demands  for  the  dis- 
missal of  the  king's  chief  adviser,  Beyme,  and  the  aboli- 
tion of  the  cabinet  system,  led  to  a  conflict  with  the 
king,  resulting  in  Stein's  dismissal,  in  January,  1807. 
While  thus  ungraciously  relieved  of  his  position,  Stein 
still  busied  himself  with  the  administrative  problems  of 
the  state,  and  in  June,  1807,  issued  his  Nassauer  Memo- 
rial, setting  forth  in  large  part  his  reform  programme, 
based  on  a  reorganization  of  the  administrative  au- 
thorities and  a  direct  participation  by  the  people  in  the 
affairs  of  government.  After  the  Peace  of  Tilsit,  Stein 
was  recalled  by  the  king  and  intrusted  with  the  entire 
direction  of  the  administration  in  the  defeated  and  dis- 
organized state.  His  ideas  were  again  developed  in  a 
report  in  November,  1807,  and  in  an  order  of  a  year 
later,  signed  by  the  king,  but  never  published.  On  the 
day  this  order  was  signed,  however,  Stein  was  again 
dismissed,  this  time  upon  demand  of  Napoleon,  whose 
spies  captured  a  letter  written  by  Stein,  urging  a  revolt 
against  the  French. 

As  a  result  of  Stein's  second  dismissal,  in  November, 
1808,  he  was  unable  himself  to  carry  out  all  his  pro- 


40  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

posed  reforms,  but  they  furnished  the  basis  for  most 
of  the  changes  made  by  his  successors.  But  two  meas- 
ures of  great  importance  were  put  into  effect  still  during 
his  ministry.  In  October,  1807,  was  issued  an  edict  by 
which  the  hereditary  serfdom  of  the  peasant  was 
abolished  and  the  acquisition  of  the  manorial  estates 
no  longer  restricted  to  the  nobility.  Thereby  the  first 
steps  in  the  needed  social  and  economic  reforms  were 
taken. 

Even  more  significant  was  the  City  Government  Act 
of  November  19,  1808,  which  established  the  principles 
that  were  to  constitute  the  basis  of  municipal  adminis- 
tration in  Germany.  The  cities  were  deprived  of 
autonomy  in  judicial  and  police  administration,  matters 
now  regarded  as  strictly  state  functions,  which  could 
however,  in  the  case  of  police  matters,  be  delegated  to 
the  municipal  executive  organs.  The  right  of  citizen- 
ship was  freed  of  dependence  on  the  trade  gilds  and 
was  greatly  extended.  The  electoral  franchise  was 
granted  all  citizens  with  a  certain  minimum  of  realty  or 
of  net  income,  and  these  elected  the  city  council  from 
among  the  property-owning  citizens.  The  council 
elected  the  executive  organ,  the  Magistrat,  which  carried 
out  the  council's  decisions.  Thereby  was  introduced 
the  dualistic  element  into  city  government.  Central 
control  had  almost  disappeared.  His  plan,  therefore, 
rested  on  the  idea  of  autonomous  local  government, 


HISTORICAL   SURVEY  41 

carried  on  by  the  body  of  the  citizens  as  a  whole,  a 
democratic  principle  quite  opposed  to  the  basis  of  the 
state  government  in  general,  which  was  still  a  bureau- 
cratic absolute  monarchy.  This  was  a  great  contrast 
to  the  oligarchic  dependent  city  government  of  the  last 
century,  a  change  quite  in  keeping  with  the  democratic 
ideas  at  the  basis  of  the  French  Revolution,  which  were 
not  without  their  influence  on  German  political  thought. 
It  was  shortly  after  putting  this  important  enactment 
into  force,  that  Stein  was  compelled  to  retire  for  the 
second  time.  He  was  followed  by  the  Altenstein-Dohna 
ministry,  which  continued  the  reform  in  his  spirit  and 
enacted  many  of  his  proposals,  with  few  important 
alterations.  The  order  of  December  16,  1808,  abolished 
the  old  council  of  state,  with  its  three  divisions,  and 
numerous  independent  provincial  ministries,  as  also  the 
cabinet  in  its  existing  form.  Stein's  idea  of  a  collegiate 
council  standing  between  the  ministers  and  the  king 
was  not  carried  out,  but  the  plan  of  establishing  the 
five  chief  ministries  —  of  the  interior,  of  finances,  of 
foreign  affairs,  of  war  and  of  justice — as  unrelated  sep- 
arate departments,  was  adopted.  Below  the  central 
administrators  and  acting  as  their  directing  agents  for 
the  territorial  divisions  called  provinces  were  to  be 
created  the  offices  of  superior  presidents.  This  was 
the  only  real  addition  to  Stein's  programme  and  was  of 
short  duration,  for  the  superior  presidents  soon  proved 


42  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

to  be  ineffective  in  their  capacity  as  simple  supervisory 
officials. 

By  the  act  of  December  26,  1808,  also  prepared  by 
Stein  before  his  retirement,  the  existing  war  and  domain 
chambers  in  each  department  were  rechristened  "gov- 
ernments," and  constituted  on  a  committee  plan,  ac- 
cording to  which  each  committee  was  given  wide  powers 
of  independent  action.  The  "government"  needed  to 
act  as  a  whole  only  in  exceptional  cases.  Stein's 
cherished  scheme  of  drawing  non-professional  un- 
salaried  laymen  into  state  administrative  service  was 
here  carried  out  by  adding  to  each  "government"  nine 
lay  representatives  of  the  class  diets.  But  this  attempt 
proved  unworkable  in  the  only  province  in  which  it 
actually  went  into  effect  and  was  soon  discontinued. 

The  "government"  was  the  highest  administrative 
authority  for  the  department  and  embodied  the  totality 
of  administrative  functions.  The  remaining  judicial 
functions  of  the  former  chambers  were  taken  away  and 
were  intrusted  to  the  superior  courts,  now  called  pro- 
vincial courts.  The  "governments"  had  large  autono- 
mous powers  and  only  a  certain  limited  class  of  affairs 
needed  to  be  referred  to  the  ministry. 

Stein's  plans  for  administrative  reform  in  the  rural 
circles,  the  subdivisions  of  the  departments,  were  not 
carried  out  by  his  successors,  though  his  ideas  were  to 
a  considerable  extent  enacted  much  later  in  the  Circle 


HISTORICAL   SURVEY  43 

Government  Act  of  1872.  His  fundamental  idea  was 
to  sever  the  still  continuing  connection  between  the 
exercise  of  the  local  police  powers  and  the  possession  of 
the  manorial  estates.  The  rural  communes  were  left 
with  their  existing  organization,  dating  back  into  feudal 
times,  consisting  of  the  communal  council  and  the  com- 
munal executive.  The  former  consisted  of  peasants, 
now,  however,  freemen,  and  the  latter  appointed  by  the 
owner  of  the  manor.  The  need  for  reform  in  this  field 
was  not  so  strongly  felt,  for  while  the  functions  of  the 
commune  were  still  almost  wholly  economic  in  their 
nature,  the  existing  organization  could,  with  few  altera- 
tions, still  also  answer  the  purposes  of  the  growing 
field  of  public  activity.  Moreover,  the  opposition  of 
the  landed  gentry  to  a  departure  from  the  old  patri- 
monial system  in  the  rural  districts  presented  a  too 
powerful  obstacle  to  permit  of  important  changes  at 
this  time. 

In  June,  1810,  the  minister  of  finances,  von  Al ten- 
stein,  was  succeeded  by  Count  Hardenberg,  as  prime 
minister,  who  directed  his  efforts  towards  social  and 
economic  reforms.  Hardenberg,  like  Stein,  had  seen 
long  administrative  service  in  the  government  of  Prussia 
before  her  humiliation  by  Napoleon.  For  purposes  of 
his  reform  ideas,  a  new  principle  of  administration  was 
thought  desirable.  Though  an  ardent  champion  of  the 
rights  and  liberties  of  the  individual,  as  announced  in 


44  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

the  principles  of  the  French  Revolution,  Hardenberg 
had  no  use  for  the  principle  of  local  self -administration. 
His  ideal  was  the  French  system  of  extreme  adminis- 
trative centralization.  His  fundamental  views  had  pre- 
viously been  expressed  in  the  so-called  Rigaer  Memorial, 
in  September,  1807. 

An  act  of  October  27,  1810,  created  for  him  the  new 
and  powerful  office  of  chancellor  of  state  and  established 
the  five  ministries  provisionally  organized  in  1808.  He 
himself  assumed  direction  of  both  the  ministries  of 
finance  and  of  interior  affairs.  He  purposed  an  entire 
change  of  military  organization  on  the  Napoleonic 
model,  but  these  attempts  did  not  materialize,  owing 
to  the  almost  universal  opposition.  An  edict  of  July  30, 
1812,  went  so  far  as  to  change  for  a  time  the  circles 
into  subprefectures,  and  to  establish  a  military  gen- 
darmerie as  executive  aid  for  the  administration.  The 
proposed  council  of  state  as  advisory  body  was  for  the 
present  postponed. 

Meanwhile,  his  attempted  tax  reforms,  based  on  the 
idea  of  equality  of  taxation,  had  aroused  the  most 
violent  opposition,  which  was  allayed  only  by  the  help 
of  a  convention  of  influential  men.  In  November,  1810, 
industrial  freedom  was  introduced.  Of  prime  impor- 
tance was  an  edict  of  1811.  By  this  act,  a  commission 
was  constituted  to  terminate  the  economic  dependence 
of  the  peasants,  by  giving  them,  in  return  for  their 


HISTORICAL   SURVEY  45 

mited  right  of  property  in  the  lands  they  cultivated, 
the  full  and  free  fee  simple  in  a  part  of  them.  Thereby 
important  advance  was  made  towards  the  increased 
economic  welfare  of  a  large  portion  of  the  population. 

In  March,  1813,  war  was  declared  against  Napoleon, 
and  the  entire  energy  of  the  state  was  united  in  one 
desperate  and  finally  successful  effort  to  throw  off  the 
foreign  yoke.  Further  reforms  in  administration  were 
then,  of  course,  out  of  the  question.  After  the  Congress 
of  Vienna,  following  Napoleon's  downfall,  Prussia  again 
found  herself  in  possession  of  a  greatly  enlarged  and 
still  considerably  scattered  territory,  partly  lands  which 
had  belonged  to  her  before  the  Peace  of  Tilsit,  partly 
wholly  new  possessions.  These  territorial  alterations 
again  demanded  a  powerful  unifying  process  to  fuse  the 
state  into  one  organic  whole. 

The  spirit  of  reaction  against  all  liberal  ideas  follow- 
ing the  Napoleonic  defeat,  prevented  the  carrying  out 
in  Prussia  of  the  culminating  ideas  in  the  reform  plans 
of  both  Stein  and  Hardenberg,  viz.,  a  national  repre- 
sentative body.  But  the  next  thirty  years  witnessed  a 
period  of  great  legislative  activity  in  Prussia,  in  the 
domain  of  administrative  organization,  with  a  view  to 
accomplishing  the  needed  unification  of  the  altered 
state. 

In  the  central  organization,  the  repeatedly  projected 
council  of  state  was  finally  really  brought  into  being 


46  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

by  order  of  March  20,  1817,  in  essentially  the  same 
form  as  it  is  found  to-day,  that  is,  as  an  advisory,  not 
executive,  collegial  body.  The  council,  presided  over 
by  the  chancellor,  was  to  contain  three  classes  of  mem- 
bers, viz.,  the  royal  princes  over  eighteen  years  of  age, 
the  ministry  and  a  specified  list  of  other  high  officials 
and  such  additional  officials  as  might  be  specially  ap- 
pointed by  the  king.  It  acted  either  as  a  body  or 
through  subdivisions,  corresponding  generally  to  the 
ministries.  Its  chief  function  was  to  consider  and 
report  on  all  legislation  before  its  submission  for  royal 
approval.  Furthermore,  it  had  jurisdiction  over  dis- 
putes concerning  the  spheres  of  the  respective  ministries 
and  over  certain  other  named  classes  of  controversies. 
It  appeared,  therefore,  as  a  body  of  considerable 
dignity.  * 

Sometimes,  indeed,  special  commissions  were  employed 
for  working  out  the  desired  laws,  but  the  most  im- 
portant legislation  of  the  next  generation  was  submitted 
to  the  council  for  consideration  and  revision.  It  con- 
stituted a  sort  of  parliament  of  officials,  wherein  the 
combined  intelligence  and  experience  of  the  Prussian 
officialdom  was  concentrated  on  the  problems  of  legis- 
lation. In  1817,  clerical,  educational  and  medical  mat- 
ters were  withdrawn  from  the  ministry  of  the  interior  and 
put  into  the  hands  of  a  special  new  ministry ;  and  in 
1819  a  new  ministry  was  created  for  the  affairs  of  the 


HISTORICAL   SURVEY  47 


court  and  the  royal  household.  In  1822,  the  important 
office  of  chancellor  of  state  disappeared  on  the  death 
of  Hardenberg,  its  only  incumbent. 

Important  changes  occurred  in  the  subordinate  ad- 
ministrative organs  as  well.  By  royal  order  of  April  30, 
1815,  the  entire  territory  was  divided  anew  into  adminis- 
trative subdivisions  called  provinces,  ten  in  number, 
and  each  province  into  two  or  more  districts,  twenty- 
five  in  all.  For  military  purposes,  the  whole  state  was 
divided  into  five  military  departments.  The  number  of 
provinces  was  later  reduced  to  eight,  by  the  union  of 
East  and  West  Prussia  into  one  province,  and  of  Cleve- 
berg  and  the  Lower  Rhine  Province  into  the  Rhine 
Province. 

At  the  head  of  each  province  was  placed  a  province 
president  (Oberprasident)  whose  duties  were  minutely 
defined  by  a  royal  instruction  of  December  31,  1825. 
He  was  charged  with  various  administrative  functions 
and  exercised  a  strict  control  over  the  entire  administra- 
tion in  the  province,  besides  acting  as  chairman  of  the 
" government"  in  the  district  in  which  he  resided. 
Special  provincial  collegial  authorities  directed  the  ad- 
ministration of  church,  educational  and  public  health 
affairs  in  the  province. 

Provincial  assemblies  were  for  the  first  time  con- 
stituted as  organs  of  a  limited  self-administration,  not, 
however,  on  a  liberal  representative  basis,  but,  on  the 


48  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

contrary,  in  keeping  with  the  reactionary  spirit  of  the 
period  on  a  class  division  akin  to  the  stratification  of 
feudal  times.  The  landed  gentry  elected  about  one- 
half  of  the  assemblymen,  the  cities  and  rural  communes 
the  other  half ;  the  electoral  franchise  being  conditioned 
on  the  ownership  of  realty.  But  the  governmental 
activity  of  these  assemblies  was  not  very  great.  In 
matters  of  self-administration,  their  field  of  action  was 
limited  by  lack  of  financial  means ;  and  in  the  domain 
of  central  administration,  it  was  confined  to  a  limited 
collaboration  through  committees.  Their  chief  signifi- 
cance lay  in  the  matter  of  legislation,  central  as  well  as 
provincial,  inasmuch  as  every  law  dealing  with  person 
and  property,  specifically  taxation,  was  submitted  to 
each  of  the  eight  provincial  diets,  not  for  their  ratifica- 
tion indeed,  but  at  least  for  their  opinion. 

The  district  "governments"  were  introduced  into  the 
new  territories,  with  such  alterations  as  had  been  neces- 
sitated by  the  reorganization  of  the  provincial  authori- 
ties in  1815.  The  jurisdiction  and  procedure  of  the 
"governments"  was  regulated  by  decrees  in  1817  and 
(1825.  They  were  charged  in  general  with  the  entire 
internal  administration  of  the  district,  including  taxa- 
tion, so  far  as  particular  matters  had  not  been  intrusted 
to  special  boards.  They  were  organized  as  collegial 
bodies  and  divided  into  departments,  normally  three  in 
number,  one  for  internal  and  police  administration; 


HISTORICAL   SURVEY  49 

one  for  finances,  including  domains,  forests  and  direct 
taxes ;  and  one  for  church  and  educational  institutions. 
The  departments  disposed  of  the  great  majority  of 
business,  while  the  entire  body  met  only  in  special 
cases.  At  the  head  of  each  department  stood  a  direc- 
tor, and  as  chairman  of  the  " government"  acting  as  a 
body  sat  the  district  president. 

The  districts  were,  moreover,  subdivided  into  circles 
as  before,  with  this  change,  that  they  were  no  longer 
strictly  rural,  since  all  cities  had  been  incorporated 
into  the  circle  organization,  save  certain  larger  ones, 
which  constituted  circles  for  themselves.  In  each  circle 
stood  the  old-time  circle  director  (Landrat),  not  so  much 
an  official  for  active  administration  as  a  controlling 
agent  of  the  central  authorities.  Alongside  this  Landrat 
there  was  constituted  the  circle  diet,  by  which  he  was 
elected  and  over  which  he  presided.  This  body,  like 
the  above-mentioned  provincial  assembly  established 
in  1823,  was  the  outgrowth  of  the  same  reactionary 
spirit  and  accorded  even  a  greater  measure  of  prepon- 
derance to  the  vote  of  the  manorial  owner  as  against 
the  other  two  constituent  elements,  city  and  rural 
commune.  But  the  scope  of  their  activity  was  also 
greatly  limited,  by  lack  of  adequate  revenue-raising 
power. 

The  smallest  governmental  subdivisions,  alone,  the 
rural  communes,  were  not  made  the  subject  of  a  general 


50  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

enactment,  because  of  the  fundamental  social  and 
economic  divergencies  in  the  various  provinces.  In 
the  early  forties  rural  commune  acts  were  passed  for 
Westphalia  and  the  Rhine  Province,  where  a  bureau- 
cratic organization  on  the  French  model  presented  the 
opposite  extreme  to  the  still  strongly  patrimonial  admin- 
istration in  the  eastern  provinces. 

For  the  cities  the  Municipal  Government  Act  of 
1808,  still  constituting  a  uniform  regulation  for  most 
of  the  states,  was  extended  to  all  except  the  Rhine  Prov- 
ince, either  in  its  original  form  or  in  a  revised  form, 
enacted  in  1831,  by  which  the  importance  of  the  Magis- 
trat  was  increased  and  a  somewhat  larger  measure  of 
central  control  provided. 

Outside  the  domain  of  administrative  organization 
also  increasing  uniformity  was  attained,  notably  in  the 
matter  of  revenues.  Furthermore,  the  army  was  firmly 
established  on  the  basis  of  a  real,  universal,  compul- 
sory military  service;  and  important  economic,  politi- 
cal and  social  legislation  promoted  the  welfare  of  the 
people.  These  measures  were  the  work  of  the  able 
ministers  of  Frederick  William  III  and  of  those  of  his 
son,  Frederick  William  IV,  by  whom  he  was  succeeded 
in  1840. 

The  revolutionary  year  1848,  though  so  fraught  with 
important  consequences  for  the  constitutional  structure 
of  the  Prussian  state,  was  of  little  significance  in  the 


HISTORICAL   SURVEY  51 

dm  of  administrative  organization.1  The  patrimo- 
nial rural  administration  in  the  eastern  provinces  held 
out  in  the  main,  even  against  this  wave  of  radicalism. 
The  judicial  jurisdiction  of  the  manors  was,  however, 
discontinued  in  1849.  Other  proposed  radical  reforms, 
especially  in  the  system  of  local  self-administration, 
were  formulated  in  the  Commune  Act  and  in  the  Circle 
District  and  Province  Act,  both  of  March  n,  1850. 
The  new  Prussian  constitution  of  January  31,  1850, 
contained  a  separate  article,  adopted  from  the  Belgian 
prototype  —  intended  to  secure  a  large  measure  of  ad- 
ministrative autonomy  to  the  local  governmental  cor- 
porations. 

But  a  period  of  strong  reactionary  tendencies  in  the 
early  fifties  defeated  attempts  at  reform  by  repeal  of 
the  two  laws  in  May,  1853 ;  on  the  same  day  the  just- 
mentioned  provisions  of  the  constitution  were  struck  out. 

Beginning  with  the  Act  of  May  30,  1853,  a  series  of 
laws  were  passed  in  the  next  three  years,  in  large  part 
in  force  to-day,  regulating  the  local  administration  of 
cities  and  communes,  but  without  presenting  essential 
departures  from  the  established  principles. 

1  But  for  administrative  law  the  Constitution  was  of  the  greatest  im- 
portance, for  it  introduced  the  principle  of  "legal "  administration  whereby 
the  administration  could  henceforth  establish  legal  rules  or  interfere  with 
the  liberty  and  property  of  individuals  only  on  the  ground  of  authoriza- 
tion by  the  legislature,  to  which  the  constitutional  separation  of  powers 
had  assigned  these  functions. 


52  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

In  1 86 1  William  I,  after  more  than  two  years  regency 
in  place  of  his  ailing  brother,  succeeded  to  the  throne. 
He  almost  immediately  became  involved  in  a  bitter 
conflict  with  the  Prussian  legislature  over  the  question 
of  reorganizing  the  army.  This  internal  contest,  fol- 
lowed by  a  period  of  foreign  wars,  postponed  further 
progress  in  administration  for  a  decade. 

As  a  result  of  the  Danish  War  in  1864  and  the  Aus- 
trian War  in  1866,  Prussia  experienced  large  territorial 
aggrandizement.1  The  duchies  of  Schleswig  and  Hoi- 
stein,  the  duchy  of  Hannover,  the  Electorate  Hessen, 
the  duchy  Nassau,  and  the  free  city  Frankfort  on  the 
Main  were  incorporated  into  the  Prussian  state;  and 
the  task  of  coordinating  the  new  territories  into  the 
administrative  system  was  at  once  begun. 

Schleswig  and  Holstein  were  constituted  as  one 
province ;  so  also  Hessen  and  Nassau  together ;  and  the 
former  kingdom  of  Hannover  a  third;  Frankfort  was 
united  to  Nassau.  At  the  head  of  each  province,  the 
customary  province  president  was  placed,  with  special 
provincial  authorities  for  matters  of  taxation,  education 
and  public  health.  Schleswig-Holstein  had  but  one 
district;  Hessen-Nassau,  two.  Hannover  retained  its 
own  administrative  subdivisions  (Landdrosteien),  six 
in  number.  In  the  lowest  instance  also  Hannover  was 

1  In  1850  the  two  small  Hohenzollern  earldoms  were  incorporated  into 
the  Prussian  state  by  voluntary  annexation. 


HISTORICAL  SURVEY  53 


allowed  to  retain  its  existing  organization  with  slight 
modifications,  while  in  the  other  two  provinces  the 
circle  with  its  director  was  introduced.  But  in  both 
the  latter,  certain  existing  local  officials  were  retained 
as  the  lowest  police  authority. 

But  as  regards  the  public  corporations  for  local  ad- 
ministration, few  changes  were  undertaken,  and  the 
existing  provincial  variations  remained  for  the  present. 
In  Schleswig-Holstein  alone  were  new  City  and  Com- 
mune Acts  put  into  force,  except  that  Frankfort  was 
organized  on  the  existing  plan  for  Prussian  cities. 

The  formation  of  the  North  German  Federation  in 
1867  and  of  its  successor,  the  German  Empire,  in  1871, 
by  which  Prussia  gave  up  its  position  as  independent 
sovereign  state  and  became  an  organic  member  of  the 
new  federal  state,  had  little  influence  on  its  own  admin- 
istrative system.  Except  in  a  few  branches  of  state 
activity,  the  Empire  exercised  legislative  functions  alone 
and  left  the  work  of  administration  in  general  to  the 
individual  states.  Prussia,  therefore,  now  had  imperial 
laws  to  administer,  in  addition  to  its  own,  but  the 
method  of  administration  was  still  a  matter  for  its  own 
determination. 

'  With  the  termination  of  the  Franco-Prussian  War  in 
1871  and  the  establishment  of  the  German  Empire, 
Prussia  at  last  had  opportunity  again  to  turn  her  atten- 
tion to  the  much-needed  administrative  reforms.  Ex- 


54  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

tensive  reformations  were  demanded,  both  in  the  organs 
of  pure  state  administration  and  in  the  system  of  local 
self -administration. 

In  the  field  of  state  administration,  wide-reaching 
reforms  were  undertaken  in  three  directions:  the 
introduction  of  a  lay  element  into  the  administration; 
*  \  a  decentralization  of  administrative  functions ;  and  the 
v  \  protection  of  the  individual  through  special  organs 
against  illegal  action  of  the  administration.  The  first 
of  these  desired  changes,  namely,  vitalization  of  the 
administration  through  the  enlistment  of  the  unpaid 
services  of  the  lay  population,  had  already  been  part 
of  Stein's  reform  plans  early  in  the  century.  The 
radical  period  of  1848-1850  had  championed  the  same 
principle  to  a  stronger  degree.  But  not  until  this 
latest  reform  was  the  principle  actually  put  into  prac- 
tice. Decentralization  was  desired,  especially  with 
respect  to  the  district  governments,  which  were  charged 
with  many  purely  local  functions  that  could  better  be 
administered  by  the  circle  authorities.  Finally,  the 
need  for  a  separation  of  the  judicial  functions  of  the 
administration  from  its  strictly  administrative  minis- 
terial activities  in  the  interest  of  individual  protection 
had  been  becoming  more  and  more  imperative.  The 
important  principle  of  a  legally  limited  administration, 
inaugurated  by  the  new  constitution,  had,  it  is  true, 
left  the  administration  no  longer  its  own  legislator ;  but 


HISTORICAL   SURVEY  55 


by  permitting  it  to  continue  as  its  own  judge,  it  had 
failed  to  cure  the  evil  of  unlimited  and  unrestrained 
executive  power.  The  ordinary  courts,  so  far  from 
extending  a  protection  to  the  individual,  as  against  the 
administration, '  had  been  more  and  more  completely 
deprived  of  all  jurisdiction  in  administrative  contro- 
versies, and  the  only  remedy  open  to  an  injured  indi- 
vidual was  the  unsatisfactory  one  of  complaint  to  the 
higher  authorities. 

The  system  of  self -administration,  moreover,  was  at 
least  as  sorely  in  need  of  reform,  with  the  exception  of 
the  cities,  as  was  the  strictly  state  administrative 
system.  This  was  especially  true  of  the  eastern  prov- 
inces, where  the  patrimonial  institutions  and  the  class 
representative  bodies  were  still  in  force. 

The  first  measure  of  the  reform  legislation,  which 
was  to  remedy  these  evident  defects,  was  passed  in 
1872.  This  was  the  Circle  Government  Act  for  the 
provinces  East  and  West  Prussia,  Brandenburg,  Pome- 
rania,  Silesia  and  Saxony.  But  its  scope  went  beyond 
the  extent  indicated  in  its  name.  Besides  determining 
the  structure  and  organization  of  the  circle  and  recon- 
stituting it  as  a  local  self-administrative  corporation, 
on  a  liberal  electoral  basis,  it  created  new  subdivisions, 
called  precincts  (Amtsbezirke) ,  which  were  vested  with 
the  patrimonial  police  jurisdiction  of  the  manors. 
Furthermore,  it  took  the  first  steps  toward  the  estab- 


56  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

lishment  of  special  judicial  jurisdiction  for  administra- 
tive matters. 

In  1875  the  reform  was  continued  by  three  im- 
portant laws,  enacted  for  the  same  provinces  as  was 
the  Circle  Government  Act.  The  Act  of  June  29  or- 
ganized the  province  on  the  same  principles  as  those 
underlying  the  Circle  Government  Act,  and  denned 
its  functions  both  as  agent  of  the  state  administra- 
tion and  as  a  unit  of  self-administration.  A  law  of 
July  3  completed  the  system  of  administrative  courts 
already  initiated  in  the  Circle  Government  Act  of  1872, 
by  establishing  three  successive  instances.  Finally,  the 
Subvention  Act  of  July  8,  1875,  removed  the  majority 
of  the  administrative  officers  for  the  province  from  the 
state  budget  to  that  of  the  province,  at  the  same  time 
appropriating  a  yearly  contribution  to  meet  the  added 
expense.  The  jurisdictional  delimitation  between  state 
and  local  authorities  and  between  organs  of  pure  ad- 
ministration and  those  for  judicial  determination  were 
laid  down  by  a  law  of  the  following  summer. 

In  1880  a  law  regarding  the  general  administrative 
organization  codified  the  various  provisions  as  to  the 
state  and  local  authorities  and  regulated  their  relation 
to  each  other.  The  final  revision  of  these  different  laws, 
preparatory  to  their  extension  to  the  other  provinces, 
occurred  in  1883,  through  two  fundamental  enactments, 
which,  save  for  minor  amendments  and  some  additions, 


HISTORICAL   SURVEY  57 

represent  the  law  in  force  to-day.  The  first  of  these, 
the  law  concerning  the  general  administration,  super- 
seded the  organization  law  of  1880,  and  the  law  of 
1875,  concerning  administrative  courts,  as  well,  except 
as  to  the  provisions  concerning  the  supreme  adminis- 
trative court.  The  separate  authorities  for  actual  ad- 
ministration and  those  for  administrative  adjudication 
in  the  district  were  now  combined  in  one  body.  The 
second  law,  that  concerning  the  competence  and  juris- 
diction of  the  administrative  bodies,  superseded  the  law 
of  1876  and  regulated  the  whole  subject  anew. 

These  laws  were  in  effect  only  in  the  six  provinces 
for  which  the  Circle  Government  Act  of  1872  was 
enacted,  namely,  Prussia,  —  since  1877  redivided  into 
East  and  West  Prussia  as  before,  —  Pomerania,  Silesia, 
Saxony  and  Brandenburg. 

The  final  step  was  the  extension  of  these  laws  to  the 
remaining  six  provinces,  which  was  begun  in  1884. 
The  Circle  and  the  Province  Acts  were  introduced  in 
virtually  the  same  form  into  Hannover  in  1884;  into 
Hessen-Nassau,  in  1885;  into  Westphalia,  in  1886; 
into  the  Rhine  Province,  in  1887 ;  and  into  Silesia,  in 
1888.  Political  considerations  weighed  against  an  altera- 
tion of  the  existing  system  of  local  self-administration 
in  Posen,  where  such  a  change  was  thought  to  endanger 
the  predominance  of  the  German  element  over  the 
Poles.  But  the  officers  of  state  administration  were 


58  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

introduced  there  in  1889,  as  they  were  into  the  other 
provinces. 

The  two  laws  of  1883,  concerning  the  general  ad- 
ministration and  the  competence  of  the  administration, 
were  enacted  for  each  province  a  year  after  the  Circle 
and  Province  Acts.  The  former  was  passed  without 
modification  for  Posen  also  in  1889;  and  the  latter, 
with  certain  alterations,  as  regards  the  circle  and  pre- 
cinct authorities. 

As  the  last  move  in  this  reform  programme,  a  Rural 
Commune  Act  was  passed  in  1891,  for  the  seven  eastern 
provinces,  which  supplemented  the  Circle  Act  by  ex- 
tending local  self-administration  to  these  bodies  also. 
The  provisions  of  this  Act  were  later  enacted,  with 
some  modifications,  in  Schleswig-Holstein  and  in  Hessen- 
Nassau. 

As  a  result,  therefore,  of  the  latest  reform  movement, 
beginning  with  the  measures  of  1872,  an  administrative 
system  was  developed,  which,  in  place  of  the  widely 
diverging  disorganized  structure  of  the  early  fifties, 
presented  an  essential  unity  with  respect  to  all  but  the 
lowest  authorities. 


,  CHAPTER  II 

THE  RELATION  BETWEEN  STATE  ADMINISTRATION  AND 
IMPERIAL  ADMINISTRATION1 

THE  relation  between  the  Prussian  state  and  the 
German  Empire  in  the  field  of  administration  cannot 
be  understood  without  a  reference  to  the  entire  relation 
of  these  states  as  founded  in  all  essential  points  in  1867 
and  perfected  in  1871,  when  the  federal  state  received 
the  designation  empire. 

The  formation  of  the  Rhine  Confederation  in  1806,  1 
which  detached  practically  all  the  German  states  save 
Prussia  and  Austria  from  the  still  existing  Holy  Roman 
Empire,  followed  by  the  abdication  of  the  Emperor 
Francis  II,  resulted  in  the  absolute  disappearance  of 
all  traces  of  the  central  power  which  for  a  thousand 
years  had,  in  theory  at  least,  bound  the  German  states 
together.  Prussia  therefore  from  that  time  on,  as 
also  Austria  and  the  Hansa  cities,  which  did  not  join 
the  Rhine  Confederation,  were  wholly  free  and  sovereign 
states.  With  the  overthrow  of  Napoleon,  resulting  in 
the  dissolution  of  the  Rhine  Confederation,  and  as  a 
result  of  the  determinations  of  the  Congress  of  Vienna, 

^nschiitz;  "  Staatsrecht "  in  Holtzendorff's  "  Encyklopaedie  der 
Rechtswissenschaf t " ;  Meyer- Anschiitz,  §212;  Laband,  I,  §  66. 

59 


60  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

all  the  other  German  powers  were  constituted  sovereign 
independent  states. 

For  more  than  half  a  century  after  the  fall  of  Napo- 
leon, all  efforts  to  found  a  federal  German  state  were 
fruitless,  and  the  only  political  tie  between  them  was 
the  German  Confederation  established  by  the  Congress 
of  Vienna,  1815.  This  was,  however,  a  mere  interna-^ 
tional  union,  based  on  a  compact  witliout  prejudke  to 
the  sovereign  powers  of  each  state.  In  effect  it  was 
only  a  defensive  alliance,  both  against  foes  from  with- 
out, and  principally  against  revolutionary  dangers  from 
within.  The  German  Confederation  had  as  its  organ  a 
Confederate  Assembly,  but  the  provisions  requiring  una- 
nimity of  votes  in  all  important  matters  in  which  the 
Confederation  might  have  acted  made  its  importance 
still  less.  Continual  friction  between  the  two  main 
powers,  Austria  and  Prussia,  paralyzed  the  action  of 
the  Confederation  and  threatened  its  existence.  After 
having  voluntarily  renounced  its  powers  in  consequence 
of  the  revolutionary  proceedings  of  1848,  the  Confederate 
Assembly  was  later  revived  and  the  Confederation  con- 
tinued until  the  declaration  of  war  between  Prussia  and 
Austria  in  1866. 

The  immediate  consequence  of  this  war  between  the 
two  principal  members  of  the  Confederation  was  of 
course  its  dissolution,  a  consequence  expressly  stipu- 
lated moreover  in  the  Treaty  of  Prague.  By  the  same 


STATE  AND   IMPERIAL  ADMINISTRATION  6 1 


treaty,  the  Emperor  of  Austria  agreed  to  recognize  the 
North  German  Confederation,  thereafter  to  be  founded 
by  the  King  of  Prussia.  The  first  effective  step  in  this 
direction  was  taken  in  1866  by  the  formation  of  an 
offensive  and  defensive  alliance  between  Prussia  and 
twenty-one  other  German  states  north  of  the  Main. 
This  alliance  was  to  be  a  temporary  expedient  for  the 
time  of  one  year  only,  within  which  period  a  new 
federal  state  was  to  be  formed  with  a  constitution  based 
on  the  Prussian  proposals  made  before  the  Austrian 
War.  A  national  parliament  was  provided  for,  as  well 
as  plenipotentiaries  to  meet  in  Berlin  for  the  drawing  up 
of  the  constitution. 

After  the  constitution  had  been  accepted  by  the 
Parliament  and  agreed  to  by  all  the  twenty-two  con- 
federated states,  the  North  German  Federation  came 
into  being  in  accordance  with  the  provisions  of  the 
constitution  on  July  i,  1867.  Thereby  was  created  a 
federal  state,  as  opposed  to  the  previous  confederated 
state,  and  Prussia  entered  into  a  relation  of  subordina- 
tion to  a  sovereign  central  power.  Following  the  forma- 
tion of  the  Federation,  treaties  of  military  and  com- 
mercial alliance  with  the  four  South  German  states 
united  the  parties  in  close  political  relations,  though 
constitutionally  wholly  separate. 

Then  the  Franco-Prussian  War,  in  which  the  South 
German  allies  effectively  fulfilled  their  treaty  obligations, 


62  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

brought  about  the  admission  of  these  states  into  the 
constitutional  federation.  According  to  the  various  anal- 
ogous treaties  framed  with  the  southern  states  in  1870, 
,the  extended  federal  state,  from  now  on  to  be  called  the 
German  Empire,  was  established  on  January  i,  1871.- 
The  constitution  of  the  North  German  Federation  con- 
tinued in  force  as  the  new  German  constitution,  with 
such  alterations  as  the  South  German  states  had  de- 
manded, but  the  first  work  of  the  new  government  was 
the  revision  of  the  constitution,  completed  on  April  16, 
1871.  This,  then,  is  the  instrument,  together  with  its 
subsequent  amendments,  in  which  the  exposition  of 
the  relation  between  Prussia  and  the  German  Empire 
is  to  be  sought. 

The  determination  of  the  limits  between  the  juris- 
diction of  the  Empire  and  that  of.  the  single  state  is 
contained  in  the  constitution  of  the  Empire.  The  Em- 
pire is,  however,  a  government  of  delegated  powers, 
while  the  single  state  is  a  government  of  inherent  or 
reserved  powers.  The  Empire  may,  therefore,  exercise 
only  those  functions  which  the  constitution  assigns  to 
it.  The  single  state  on  the  other  hand  may  exercise  all 
powers  of  state  except  in  so  far  as  limited  by  the  con- 
stitution. In  case  of  doubt,  therefore,  the  presumption 
of  jurisdiction  is  in  favor  of  the  single  state. 

Article  4  of  the  imperial  constitution  enumerates 
many  of  the  functions  of  the  Empire,  both  as  regards 


STATE   AND   IMPERIAL  ADMINISTRATION  63 

legislation  and  control.  It  must  be  noted  that  the 
jurisdiction  of  the  Empire  as  regards  all  the  matters 
enumerated  in  Article  4,  —  citizenship ;  commerce  and 
customs  duties ;  money,  weights  and  measures ;  banks ; 
patents  and  copyrights ;  railroads ;  navigation ;  post 
and  telegraph;  army  and  navy;  etc.,  etc.,  comprises 
only  supervision  and  legislation,  not  administration. 
According  to  the  principle  laid  down  above,  therefore, 
the  Emrjire  has  no  generaLpowjer^  of  administration. 

It  must  not  be  forgotten,  however,  that  although  the 
constitution  limits  the  powers  of  the  Empire,  in  the 
sense  that  only  those  powers  it  enumerates  can  at  any 
given  time  be  exercised  by  the  Empire,  yet  inasmuch 
as  the  absolute  power  of  amending  the  constitution  is 
at  the  same  time  given  by  the  instrument,  there  is 
nothing  to  prevent  the  Empire  from  enlarging  its  powers 
at  any  time  by  amending  the  constitution.  This  is 
possible  by  an  ordinary  act  of  the  legislature,  provided 
not  more  than  fourteen  votes  oppose  it  in  the  Bundesrat. 
It  is  true  that  Prussia  with  her  seventeen  votes  could  in 
fact  all  alone  prevent  an  amendment  which  she  opposed, 
but  the  constitutional  principle  remains  that  the  Empire 
may  enlarge  its  own  jurisdiction  at  the  expense  of  the 
single  states  by  an  ordinary  law  to  that  effect.  This 
has,  indeed,  already  been  done.1 

1  Law  of  March  3,  1873,  adding  the  regulation  and  supervision  of  navi- 
gation signs  to  the  jurisdiction  of  the  Empire.  So  also,  above  all,  the  law 


64  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

The  Empire  could,  therefore,  assume  the  administra- 
tive, as  also  the  judicial,  power,  but  this  it  has  not 
chosen  to  do.  The  general  principle  has  been  followed 
that  administration  is  a  matter  for  the  individual  states, 
while  regulation,  i.e.  legislation  and  supervision,  is  exer- 
cised by  the  Empire  in  regard  to  the  matters  within  its 
jurisdiction.  Nevertheless,  there  is  imperial  adminis- 
tration as  well  as  state  administration.  This  is  the 
so-called  proper  and  immediate  administration  of  the 
Empire.  It  includes  the  organization  and  direction  of 
the  imperial  organs,  the  administration  of  the  imperial 
finances  and  all  other  matters  lying  without  the  sphere  of 
action  of  the  individual  state,  such  as  foreign  relations. 

Furthermore,  the  entire  administration  in  the  terri- 
tory not  belonging  to  any  state,  Alsace-Lorraine  and 
the  colonies  is  imperial  administration.  Finally,  there 
are  various  branches  of  administration  which  the  Em- 
pire has  undertaken  itself,  either  on  the  basis  of  con- 
stitutional provisions  to  that  effect,  such  as  the  ad- 
ministration of  the  navy,  in  part  of  the  army,  of  the 
post  and  telegraph,  etc.,  or  on  the  basis  of  special  laws 
altering  the  constitution,  such  as  the  administration  as 
regards  money  weights  and  measures,  navigation  patents, 
workingmen's  insurance,  etc. 

All  other  administration  is  therefore  matter  of  the 

of  December  20,  1873,  extending  the  jurisdiction  of  the  legislature  to  the 
whole  field  of  civil  and  criminal  law  and  procedure. 


STATE   AND   IMPERIAL  ADMINISTRATION  65 


states,  but  subject  to  the  supervision  of  the  Empire 
with  regard  to  all  matters  enumerated  in  Art.  4  of 
the  constitution.  This  supervisory  power  of  the  Em- 
pire exists  irrespective  of  the  actual  exercise  of  the 
imperial  legislative  power  with  regard  to  a  given  matter, 
for  in  Art.  4  the  supervising  power  is  mentioned  before 
the  legislative  power. 

The  scope  and  purpose  of  this  supervision  is  to  pre- 
vent the  individual  state  from  endangering  the  interests 
of  the  Empire  and  to  insure  administration  within  the 
limits  of  the  laws.  The  supervision  is  exercised  by  the 
Emperor,  his  subordinate  authorities  and  the  Bundesrat 
for  those  branches  of  administration  that  are  regulated 
by  imperial  law.  The  Emperor  has  this  power  of 
supervision  by  virtue  of  Art.  17  of  the  imperial  con- 
stitution, whereby  he  is  charged  with  the  duty  of  dis- 
covering and  attacking  defects  in  the  administrative 
action  of  the  single  state.  The  means  of  remedying 
the  defect  must  be  determined  by  the  Bundesrat  by 
virtue  of  Art.  7,  paragraph  3,  except  in  military  questions 
(Art.  63,  paragraph  3). 

If,  however,  a  matter  subject  to  the  supervision  of 
the  Empire  has  not  been  regulated  by  imperial  law, 
then  the  supervisory  organ  is  the  Bundesrat  alone. 
This  function  follows  from  the  general  presumptive 
jurisdiction  of  the  Bundesrat,  which  possesses  all  powers 
of  the  Empire  not  assigned  to  one  of  the  other  organs. 


66  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

The  manner  of  exercising  the  supervision  is  not  indi- 
cated in  the  constitution,  but  the  natural  method  is 
for  the  supervising  organs  to  demand  of  the  executive 
of  the  state  information  concerning  events  calculated  to 
induce  an  intervention  by  the  Empire.  The  coercive 
power  for  enforcing  this  control  is  given  in  Art.  19 
of  the  constitution,  by  which  the  Bundesrat  is  to  deter- 
mine on  execution  and  the  Emperor  carry  it  out,  by 
force  of  arms  if  need  be. 

Finally,  it  may  be  mentioned  that  in  all  matters  not 
included  among  those  declared  to  be  subject  to  super- 
vision by  the  Empire,  the  manner  of  administration  is 
determined  wholly  by  the  laws  of  the  individual  states 
free  from  interference  by  the  Empire.  So,  for  instance, 
the  whole  question  of  local  government  is  a  matter  to 
be  dealt  with  individually  by  each  state  subject  to  no 
other  law  or  supervision  than  that  of  the  state  itself. 
The  same  is  true  as  regards  education  and  religion. 


CHAPTER  III_ 

THE  ORGANS  OF  ADMINISTRATION 

Central  Authorities 

THE  supreme  administrative  authority  is  the  King. 
By  virtue  of  his  position  as  executive  head  of  the  State, 
he  is  clothed  with  the  power  of  organizing  and  directing  , 
the  administrative  branch  of  the  government.1  This  / 
power  includes  the  right  to  create  offices,  to  appoint 
officers,  to  define  their  jurisdiction  and  to  issue  all  need- 
ful rules  and  regulations  for  their  government,  so  far 
as  these  matters  are  not  regulated  by  legislative  enact- 
ment. This  executive  power  cannot,  however,  be  used 
either  to  create  new  legal  rights  or  to  prejudice  existing 
ones,  for  that  is  the  function  of  the  legislature.2  Further- 
more, the  legislature  can,  through  its  power  over  appro- 
priations, exercise  an  indirect  veto  on  the  power  of 
organization,  whenever  these  executive  measures  of 
organization  involve  additional  expense.3 

The  King  can  act  in  his  administrative  capacity  only 

1  Meyer-Anschiitz,  "Deutsches  Staatsrecht,"  Ed.  vi  (1905),  p.  571, 
n.  5.  2  Constitution  of  Prussia,  1850,  Art.  62,  par.  i. 

3  Ibid.  par.  3. 

67 


68  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

through  the  agency  of  his  Ministers,  whose  counter- 
signature  is  requisite  to  the  validity  of  his  acts.1  He 
alone  has  the  right  to  appoint  and  remove  the  Ministers,2 
except  in  cases  of  violation  of  the  constitution,  bribery 
or  treason,  when  another  method  of  removal  may  be 
provided  for  by  law.3 

The  system  of  independent  coordinate  Ministries  was 
first  permanently  established  in  i8io.4  Originally  five 
in  number,  they  have  since  been  increased  to  nine,  and 
now  comprise  the  Ministries  of  (a)  Foreign  Affairs, 
(b)  War,  (c)  Justice,  (d)  Finances,  (e)  the  Interior, 
(/)  Spiritual,  Educational  and  Medical  Affairs,  (g)  Public 
Works,  (h)  Agriculture,  Domains  and  Forestry,  (i)  In- 
dustry and  Trade. 

At  the  head  of  each  Ministry  stands  an  independent 
Minister  who  is  solely  responsible  for  the  conduct  of  his 
department,  the  jurisdiction  of  which  is  defined  by  law. 

The  functions  of  the  Minister  are  to  direct  his  depart- 
ment, to  countersign  the  governmental  acts  of  the  King 
and  to  execute  his  orders.  For  the  exercise  of  these 
functions,  he  is  empowered  to  issue  orders  to  his  sub- 
ordinates in  office  —  saving  those  who,  like  the  judges, 
are  especially  given  an  independent  position.  He 
supervises  the  state  authorities  and  officers  of  his  depart- 
ment, is  highest  instance  in  all  administrative  questions 

1  Constitution  of  Prussia,  1850,  Art.  44.    2  Ibid.  Art.  45.    *Ibid.  Art.  61. 
4  Order  of  Oct.  27,  1810  (Gesetz  Sammlung,  p.  3),  S.  S.  p.  113. 


THE   ORGANS   OF  ADMINISTRATION  69 


not  expressly  assigned  to  other  organs  and  must  at 
stated  intervals  submitjtojthe  King  a  report  concerning 
his  department.1 

Under  the  Minister,  and  responsible  in  all  things  to 
him,  are  an  Under  Secretary  (Staatssekretar)  as  general 
agent,  Divisional  Chiefs  (Ministerialdirektoren)  for  the 
divisions  into  which  each  department  is  divided,  and  a 
number  of  Counsellors  (Vortragende  Rate). 

The  Ministries  of  Foreign  Affairs,  of  War,  and  of 
Justice  deal  with  phases  of  administration  that  do  not 
fall  within  the  concept  "internal  administration" 
treated  in  this  work.  The  organization  and  jurisdiction 
of  these  departments  need,  therefore,  not  be  more 
closely  examined  here.2 

The  Ministry  of  Finances  dates  from  the  order  of 
1810,  though  its  jurisdiction  has  been  variously  altered 
since  that  time.  It  comprises  three  divisions,  one  for 
budget  and  treasury,  another  for  direct  taxes  and  the 
third  for  indirect  taxes  and  customs.  The  jurisdiction 
of  the  Ministry  extends  over  the  general  treasury,  the 
direction  of  the  lottery,  the  mint,  the  collection  and 
management  of  revenues,  the  administration  of  State 
debts  and  other  financial  activities  of  the  State.3 

The  Ministry  of  the  Interior,   the  last  of  the  five 

i  Ibid. 

8  For  a  description  of  these  three  ministries  cf.  Hue  de  Grais,  "Hand- 
buch  der  Verfassung  und  Verwaltung,"  20  Ed.,  §§  44,  83,  99,  174,  par.  2. 
§47. 


70  PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

original  Ministries  established  in  1810,  comprises  two 
divisions.  Its  jurisdiction,  considerably  diminished  from 
its  original  extent  by  repeated  partition  into  new  Minis- 
tries, covers  the  general  field  of  internal  administration, 
including  the  supervision  of  the  subordinate  govern- 
mental organizations  and  the  police  functions.  It  has, 
moreover,  the  residuary  jurisdiction  over  all  matters  not 
assigned  to  other  departments.1 

The  Ministry  for  Spiritual,  Educational  and  Medical 
Affairs  was  created  in  1817  2  by  withdrawing  these  sub- 
jects from  the  Ministry  of  the  Interior.  It  comprises 
four  divisions;  one  for  spiritual  affairs,  another  for 
higher  and  technical  education,  a  third  for  primary 
education  and  a  fourth  for  medical  affairs.  The 
Ministry  has  general  jurisdiction  over  the  universities 
and  technical  schools,  scientific  and  art  institutes, 
various  educational  and  medical  examining  boards  and 
sanitary  commissions.3 

The  Ministry  of  Public  Works  was  established  in 
1878  4  by  separation  from  the  Ministry  of  Trade,  In- 
dustry and  Public  Works.  It  contains  seven  divisions 
—  five  for  the  various  branches  of  railroad  administra- 
tion and  two  for  public  works  and  buildings  and  the 
regulation  of  highways  and  buildings.5 

1  Hue  de  Grais,  "  Handbuch  der  Verfassung  und  Verwaltung,"  20  Ed., 
§  48.  2  Royal  Order,  Nov.  3,  1817  (G.  S.  1817,  p.  289),  S.  S.  p.  155. 

3  Hue  de  Grais,  §  49. 

4  Royal  Order  of  Aug.  7, 1878  (G.  S.  1879,  p.  25).       6  Hue  de  Grais,  §  50. 


THE   ORGANS    OF  ADMINISTRATION  7 1 

The  Ministry  of  Agriculture,  Domains  and  Forests 
was  founded  in  1878  *  by  transferring  from  the  Ministry 
of  Finances  the  administration  of  Forests  and  Domains 
to  the  Ministry  of  Agriculture.2  It  comprises  four 
divisions,  the  first  two  of  which  deal  with  a  variety  of 
economic  and  agricultural  undertakings,  the  third  with 
the  administration  of  the  domains,  and  the  fourth  with 
the  state  forest  preserves.  For  the  execution  of  its 
functions,  the  Ministry  relies  upon  a  number  of  subordi- 
nate educational  and  technical  institutes.3 

Finally,  the  Ministry  of  Commerce  and  Industry, 
established  in  1878^  also  contains  four  divisions  :  mines 
and  mining,  commerce,  industry  and  industrial  educa- 
tion and  improvement.  In  addition  to  a  number  of 
institutions  —  educational,  technical  and  scientific  — 
maintained  for  its  purposes,  it  is  charged  with  the 
supervision  of  private  banks,  navigation,  harbors  and 
pilotage.5 

The  Ministry  of  the  Royal  Household,  established  in 
1819, 6  does  not  belong  to  the  state  departmental  Minis- 
tries, for  its  function  is  primarily  the  administration  of 

1  Order  of  Aug.  7,  1878,  and  Law  of  March  13,  1879  (G.  S.  1879,  PP- 
25,  123). 

2  The  Ministry  of  Agriculture  was  established  in  1848    (G.  S.  1848, 
p.  159,  n.  5),  by  separation  from  the  then  Ministry  of  Trade,  Industry 
and  Public  Works.  3  Hue  de  Grais,  §  51. 

4  G.  S.  1879,  P-  123.  6  Hue  de  Grais,  §  52. 

6  Royal  Order,  Jan.  n,  1819  (G.  S.  1819,  p.  2). 


72  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

the  private  affairs  of  the  Crown.  It  does,  however, 
exercise  certain  public  functions  in  matters  of  nobility 
and  rank. 

f  The  nine  independent  departmental  Ministries  attain 
[  unity  of  action  in  the  joint  Ministry  of  State  (Staats- 
ministerium)  established  in  iSi/j.,1  comprising  all  the 
Ministers.  In  addition  to  the  departmental  Ministers, 
it  is  customary  for  the  King  to  appoint  Ministers  with- 
out portfolio,  who  are  then  also  members  of  the  Ministry 
of  State.  Furthermore,  three  or  four  of  the  Secretaries 
at  the  heads  of  the  most  important  offices  in  the  Im- 
perial Chancellory  are  usually  drawn  into  the  Prussian 
Ministry  of  State  to  insure  the  smooth  working  together 
of  Prussian  and  imperial  organs.2  The  Ministry  of 
State  is  presided  over  by  the  Minister  President,  who 
is,  however,  merely  chairman,  not  in  any  sense  a  Prime 
Minister.3  This  Minister  President  is  usually,  though 
not  necessarily,  the  Minister  of  Foreign  Affairs,  who  is 
also  the  Imperial  Chancellor.4  A  vice-president  may  also 

1  Order  of  June  3,  1814  (G.  S.  1814,  p.  40),  S.  S.  p.  124.     Its  functions 
were  extensively  denned  in  the  Order  of  Nov.  3,  1817  (G.  S.  1817,  p. 
289),  and  by  later  enactments. 

2  At  the  present  time,  three  such  secretaries  are  in  the  Ministry  of  State. 

3  At  the  time  of  its  establishment  under  Count  Hardenberg,  as  Chan- 
cellor of  State,  the  Ministry  of  State  was  presided  over  by  him  as  real 
Prime  Minister.     But  with  his  death  and  the  disappearance  of  the  office 
in  1822,  the  presidency  lost  its  original  importance. 

4  For  the  political  reasons  at  the  basis  of  this  relation  see  Meyer- 
Anschiitz,  §  135. 


THE   ORGANS   OF   ADMINISTRATION  73 

appointed  from  among  the  Ministers.  Otherwise 
the  senior  in  time  of  service  acts  as  vice-president. 
When  the  Ministry  of  State  meets  under  presidency  of 
the  King,  it  is  called  the  Crown  Council  (Kronrat). 
Its  meetings  are  not  regular,  but  as  occasion  demands. 

The  functions  of  the  Joint  Ministry  of  State  are  two- 
fold, advisory  and  executive.  Its  nature  is,  however, 
essentially  advisory,  for  its  chief  purpose  is  to  permit 
consultation  and  discussion  among  the  departmental 
Ministers,  who  are  not,  however,  legally  bound  to  abide 
by  its  determinations.  This  follows  from  their  position 
as  independent  Ministers,  directly  responsible  to  the 
Crown  alone.  As  advisory  body,  it  receives  reports 
from  the  Ministers  and  gives  its  opinion  on  all  proposed 
laws,  the  budgets,  proposals  of  the  higher  administra- 
tive bodies,  and  conflicts  of  opinion  or  jurisdiction 
between  Ministers.1 

It  has,  however,  also  determinative,  not  merely  ad- 
visory, functions :  so  the  right  of  nomination  for  adminis- 
trative officers  of  higher  order,  e.g.,  Province  Presidents, 
District  Presidents,  as  well  as  for  sugejrior  judges  and 
other  officers  of  like  rank.  Furthermore,  it  is  the 
highest  instance  for  disciplinary  proceedings  against 
administrative,  non-judicial  officers ; 2  the  last  authority 
in  proceedings  for  the  compulsory  amalgamation  of 

1  Order,  Nov.  3,  1817  (G.  S.  1817,  p.  289,  viii),  S.  S.  p.  155. 

2  Diszip.  Ges.,  July  21, 1852  (G.  S.  1852, p.  465,  §§  41-46),  S.  S.  p.  401. 


74  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

Rural  Communes  and  Manorial  Precincts ; 1  and  the 
moving  body  for  the  dissolution  of  the  representative 
organs  of  municipal  corporations.2 

By  the  constitution  itself,  which  continued  this  in- 
stitution of  a  combined  ministerial  council,  the  Ministry 
of  State  is  charged  with  certain  exceptional  duties.  So  it 
must  convoke  the  legislative  houses  for  the  election  of  a 
regent,  if  no  heir  exists  who  is  entitled  by  law  to  act  as 
regent;  and  up  to  the  assumption  of  the  regency  by 
the  one  to  be  chosen,  the  Ministry  of  State  acts  as  the 
supreme  executive  organ  for  the  State.3  Furthermore, 
in  cases  of  urgent  necessity,  royal  orders  may  be  issued 
with  the  force  of  legislative  enactments,  if  approved  by 
the  entire  Ministry  of  State.4  Finally,  the  right  to 
suspend  certain  articles  of  the  constitution  in  times  of 
war  or  rebellion  5  has  been  assigned  to  the  Ministry  of 
State.6 

Directly  subordinated  to  the  Joint  Ministry  of  State, 
and  not  to  any  one  departmental  ministry,  are  various 

1  Landgemeindeordnung,  July  3,  1891  (G.  S.  1891,  p.  233.  §  2,  pars.  3 
&4),  S.  S.  p.  722. 

2  Stadteordmmg,  May  30,  1853  (G.  S.  1853,  p.  261,  §  79),  S.  S.  p.  517. 
Landgemeindeordnung,  July  3,  1891  (G.  S.  1891,  p.  233,  §  142),   S.  S.  p. 
722.     Kreisordnung,  Dec.  13,  1872  (G.  S.  1872,  p.  661,  §  179),  S.  S.  p. 
916.     Provinzialordnung,  June  29,  1875  (G.  S.  1875,  p.  335,  §  122),  S.  S. 

P-  977- 

3  Const,  of  Prussia,  1850,  Art.  57.        4  Ibid.  Art.  63.       6  Ibid.  Art.  3. 
6  Law  of  March  20,  1837  (G.  S.  1837,  p.  6).    Order  of  June  25,  1867 

(G.  S.  1867,  p.  921,  Art.  II). 


THE   ORGANS   OF  ADMINISTRATION  75 

important  quasi-judicial  bodies,  such  as  the  disciplin- 
ary court  for  non- judicial  officers  (Disziplinarhof),  the 
court  for  conflicts  of  jurisdiction  between  administra- 
tive and  judicial  courts  (Kompetenzgerichtshof)  and 
the  supreme  administrative  court  (Oberverwaltungs- 
gericht),  as  also  certain  organs  of  pure  administration.1 
*  The  Council  of  State  (Staatsrat)  established  in  iSi;,2 
after  being  repeatedly  planned  without  realization,  was 
modelled  on  the  French  Conseil  d'Etat  in  its  advisory 
capacity  and  created  as  consulting  body  for  the  King. 
Its  importance  was  at  first  very  considerable,  but  has 
steadily  diminished,  and  with  the  introduction  of  the 
constitution  (1850)  it  lost  its  raison  d'etre  and  there- 
with nearly  all  practical  significance.  It  is  composed 
(i)  of  the  Royal  Princes  who  have  attained  their  ma- 
jority, (2)  of  ex-officio  members,  including  the  Minis- 
ters, Field  Marshals,  the  Chefs  of  the  Cabinet,  the 
President  of  the  Supreme  Court  of  Accounts  and  such 
active  Generals  and  Province  Presidents  as  are  located 
in  Berlin;  and  (3)  of  such  other  members  as  the  King 
may  appoint.  The  King  either  acts  himself  as  presi- 
dent or  appoints  a  chairman ;  a  secretary  is  also  provided 
for  in  the  order. 

The  Council  is  divided  into  seven  departments,  which 
were  charged  with  the  bulk  of  the  business  by  the  act 

1  Hue  de  Grais,  §  47. 

2  Order  of  March  20,  1817  (G.  S.  1817,  p.  67),  S.  S.  p.  132. 


76  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

of  reorganization  in  I848.1  The  meetings  are  at  irregu- 
lar intervals,  as  occasion  demands,  but  for  about  twenty 
years  past,  there  has  been  no  convocation  of  the  Coun- 
cil ;  and  though  in  the  first  thirty  years  of  its  existence 
the  Council  of  State  exercised  an  active  and  beneficial 
influence  in  questions  of  administration,  it  is  now  in 
effect  defunct,  though  not  formally  discontinued. 
/  The  Privy  Cabinet,  an  institution  that  exists  in  name 
since  the  time  of  the  Great  Elector,  dates  in  its  present 
organization  from  the  same  order  of  1810  which  estab- 
lished the  five  central  Ministries.  At  that  time,  its 
earlier  character  of  intermediate  authority  between 
Ministers  and  King  was  abolished.  Instead  of  being 
an  order  superior  to  the  Ministers  —  and  in  the  period 
immediately  preceding  often  opposed  to  their  wishes  — 
\\  it  became  a  sort  of  secretary's  office  for  the  despatch  of 
the  ruler's  public  functions  as  Emperor  and  King, 
especially  in  his  dealings  with  the  Ministers. 

It  comprises  three  divisions,  the  Civil  Cabinet  under 
the  Privy  Cabinet  Counsellor;  the  Military  Cabinet, 
constituted  by  the  division  for  personnel  affairs  in  the 
Ministry  of  War ; 2  and  the  Naval  Cabinet,  an  organ  for 
personnel  affairs  in  the  Navy.3 

In  addition  to  these  ministerial  organs,  there  exist  as 

1  Order  of  Jan.  6,  1848  (G.  S.  1848,  p.  15). 

2  Order,  March  18,  1883  (Armeeverordnungsblatt,  1883,  p.  56). 

3  Order,  March  30,  1889  (Marineverordnungsblatt,  1889,  p.  771). 


THE   ORGANS   OF   ADMINISTRATION  77 


strictly  central  administrative  authorities,  —  that  is, 
those  which  are  immediately  subordinated  to  the  King, 
— the  Supreme  Administrative  Court  and  the  Supreme 
Chamber  of  Accounts. 

The  Supreme  Administrative  Court  (Oberverwalt- 
ungsgericht)  was  established  by  law  of  1875  1  as  the 
highest  authority  in  the  system  of  administrative  courts. 
It  is  composed  of  professional  members,  over  thirty 
years  of  age,  half  of  whom  must  be  qualified  for  the 
office  of  judge ;  the  other  half,  for  the  superior  adminis- 
trative service.  They  are  appointed  for  life  by  the 
King  on  nomination  of  the  joint  Ministry  of  State  and 
are  removable  only  by  action  of  the  court  itself.2  By 
act  of  the  Ministry  of  State,  as  sanctioned  by  the  law 
of  i88o,3  the  Supreme  Administrative  Court  has  been 
divided  into  nine  departments,  called  Senates,  each 
comprising  at  least  five  members. 

There  is  a  President  for  the  Court  as  a  whole,  who 
acts  also  as  President  for  one  of  the  regular  Senates 
and  for  the  special  Senate  for  the  disciplinary  proceed- 
ing. For  each  of  the  other  seven  Senates,  there  is  like- 

1  Law  of  July  3,  1875,  reenacted  in  the  Law  of  August  2,  1880  (G.  S. 
1880,  p.  828,  §§  17-29).  Further  provisions  concerning  the  organization 
and  method  of  procedure  of  this  court  are  contained  in  later  laws.  See 
Anschiitz-Dochow,  "Organizationsgesetze  der  inneren  Verwaltung  in 
Preussen,"  2d  Ed.,  p.  139  ff.  Also  Hue  de  Grais,  op.  cit.  p.  65,  §  53,  n.  i. 

»  Law  of  May  8,  1889  (G.  S.  1889,  p.  107),  S.  S.  p.  418. 

1  Law  of  Aug.  2,  1880  (supra,  §  26). 


78  PRINCIPLES   OF  PRUSSIAN   ADMINISTRATION 

wise  a  President.  Decisions  are  rendered  by  the  in- 
dividual Senates,  but  in  case  a  Senate  decision  runs 
counter  to  a  former  decision  of  another  Senate,  it  must 
be  submitted  to  the  Court  as  a  whole.1  For  decisions 
of  the  entire  Court,  the  participation  of  two-thirds  of 
all  members  is  required.  An  executive  committee,  com- 
posed of  the  President,  the  Senate  Presidents  and  the 
senior  member  of  the  Court,  determines  the  composition 
of  each  Senate  for  the  ensuing  year.  The  distribution 
of  business  among  the  Senates  is  determined  by  the 
Court  acting  in  a  body,  subject  to  approval  by  the 
Ministry  of  State.  The  appointment  of  the  subordi- 
nate officials  of  the  Court  rests  with  the  Ministry  of 
State,  so  far  as  not  transferred  to  the  President  by 
action  of  the  Court  as  mentioned  above.  The  office  of 
a  member  of  the  Court  is  a  primary  one  and  can  neither 
be  conferred  as  a  secondary  one  nor  combined  with  other 
remunerative  offices,  except  to  the  extent  allowed  by 
law  in  the  case  of  judges.  The  jurisdiction  of  the  Su- 
preme Administrative  Court  is  partly  appellate,  partly 
original.  In  the  former  case,  it  may  act  as  court  of 
appeal  or  as  court  of  review  for  appealable  or  reviewable 
decisions  of  the  lower  administrative  tribunals,  and  it 
may  be  the  court  of  either  second  or  third  instance. 

The  Supreme  Chamber  of  Accounts,  first  established 
in  1714  as  a  royal  auditing  authority,  was  reorganized 
1  Law  of  May  27, 1888  (G.  S.  1888,  p.  226). 


THE   ORGANS   OF  ADMINISTRATION  79 

in  1817  and  I824.1  The  Prussian  constitution  desig- 
nates this  body  as  the  auditor  of  state  accounts  and  as 
highest  reporting  authority  to  the  legislature.2  The  law, 
however,  which  was  to  regulate  the  organization  and 
jurisdiction  of  the  Chamber  of  Accounts,  was  not  passed 
until  i872.3 

By  virtue  of  that  law,  and  of  supplementary  enact- 
ments,4 the  Chamber  is  constituted  a  central  organ  for 
audit  and  control,  directly  subordinate  to  the  King  and 
independent  of  the  Ministers.  It  consists  of  a  Presi- 
dent, appointed  by  the  King  upon  presentation  of  the 
Ministry,  and  of  other  members  similarly  appointed 
on  presentation  of  the  President.  The  members  of  this 
body  may  not  also  be  members  of  the  legislature.  They 
have  the  same  security  of  office  as  the  judges  of  the 
Supreme  Administrative  Court. 

The  functions  of  the  Chamber  of  Accounts  are,  to 
examine  and  certify  the  accounts  of  all  state  authori- 
ties, to  record  the  increases  and  diminutions  in  the 
property  of  the  State  and  to  supervise  the  management 
of  the  state  debt.  Furthermore,  it  must  examine  and 
approve  the  report  on  the  budget  and  expenses  for  the 
preceding  year,  before  the  submission  thereof  to  the 
legislature. 

1  Instruction  of  Dec.  18,  1824  (Kamptz'  Annalen,  ix,  2). 

2  Prussian  Const.,  Jan.  31,  1850,  Art.  104. 

3  Law,  Mar.  27,  1872  (G.  S.  1872,  p.  278  ff.),  S.  S.  p.  423. 

4  Cf.  Hue  de  Grais,  p.  190,  n.  4. 


80  PRINCIPLES   OF   PRUSSIAN  ADMINISTRATION 

The  same  organ,  increased  by  the  addition  of  a  few 
members  and  called  Court  of  Accounts  of  the  German 
Empire,  exercises  the  corresponding  function  in  the 
finance  administration  of  the  Empire  by  virtue  of  an 
imperial  law,  renewed  from  year  to  year.1 

Subordinate  Authorities 

For  purposes  of  the  general  internal  state  adminis- 
tration, the  territory  of  Prussia  is  divided  into  Provinces, 
these  in  turn  into  Districts  (Regierungsbezirke),  and 
these  into  Circles  (Kreise).  For  each  class  of  sub- 
divisions, there  is  a  special  organization  of  state  au- 
thorities. The  Provinces  and  Circles,  moreover,  con- 
stitute also  the  areas  of  public  corporations  for  local 
administration,  while  the  District  is  solely  an  organ  of 
state  administration. 

Province  State  Administration 

The  present  scheme  of  dividing  the  State  into  ad- 
ministrative units,  called  Provinces,  was  adopted  in 
i8i5-2  At  first  ten  in  number,  they  were  later  reduced 
by  amalgamation  to  eight;  then,  by  the  addition  of 
the  territory  acquired  in  1866,  increased  to  eleven;  and 

1  Law,  July  4,  1868  (Bundes  G.  B.  1868,  p.  433).     For  supplementary 
provisions,  cf.  Hue  de  Grais,  p.  264,  n.  8. 

2  Order  of  April  30,  1815  (G.  S.  1815,  p.  85),  S.  S.  p.  126. 


THE   ORGANS   OF  ADMINISTRATION  8 1 

finally,  in  1877,  by  the  redi vision  of  the  Province  Prussia 
into  East  and  West  Prussia,  still  further  increased  to 
their  present  number,  twelve.1  Their  boundaries,  based 
on  historical  antecedents,  are  irregular  and  not  always 
continuous,  but  all  portions  of  the  State  lie  within  some 
Province,  except  the  territories  of  Hohenzollern  and  the 
City  of  Berlin.  The  former  are  generally  treated  as  a 
separate  District,  the  latter  usually  as  a  separate  Circle. 

The  organs  of  state  administration  in  the  Province 
are  the  Province  President  (Oberprasident)  and  the 
Province  Council  (Provinzialrat) . 

The  office  of  Province  President  dates  from  the 
order  of  1815.  It  was  created  to  serve  purely  as  a 
supervising  agent  for  the  Minister  in  the  Province,  not 
as  a  local  authority.  Its  functions  were,  however, 
later  increased,  and  the  office  now  constitutes  also  an 
active  administrative  authority,  with  a  jurisdiction  of 
its  own. 

The  functions  of  the  Province  President  as  defined 
in  an  instruction  of  18252  and  in  subsequent  decrees, 
orders  and  laws,3  are  threefold. 

1  These  Provinces  are  generally  classed  in  three  groups,  as  follows : 
the  "  East "  Provinces  —  East  and  West  Prussia,  Posen,  Silesia,  Pomerania 
and  Brandenburg ;  the  "  West "  Provinces  —  Rhine,  Westphalia  and  Hes- 
sen-Nassau;  and  the  "New"  Provinces  —  Schleswig-Holstein,  Hannover 
and  Saxony.    The  first  and  second  groups  are  also  sometimes  classed 
together  as  the  "Old"  Provinces. 

2  Instruction  of  Dec.  31,  1825  (G.  S.  1826,  p.  i),  S.  S.  p.  156. 

3  Cf.  Hue  de  Grais,  p.  70. 


82  PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

(1)  He  has  a  sphere  of  immediate  state  administra- 
tion.    Together    with    an    assistant    (Oberprasidialrat) 
and  the  requisite  number  of  counsellors  and  aids,1  he 
is   charged   with   all   matters   of  state   administration 
concerning  the  Province  at  large,  and  those  extending 
beyond  the  sphere  of  a  single  district.     So,  for  instance, 
state  institutions,  cooperation  with  the  military  authori- 
ties, the  public  dealings  with  the  Catholic  Church  and 
the  chairmanship  in  various  Province  boards  are  all 
objects  of  his  administrative  activity.2    Furthermore, 
he  is  licensing  authority  for  a  variety  of  activities  not 
of  common  right  and  appoints  certain  inferior  officers.3 

/  Finally,  the  Province  President  may  issue  certain  police 

V  regulations  4  for  areas  not  included  within  a  single  dis- 

trict, which  must  be  approved  by  the  Province  Council.5 

(2)  The   second  form  of  activity  of   the   Province 
President  is  that  of  a  supervising  authority,  both  for 
the  subordinate  state  authorities  in  the  Province  6  and 
for  the  n\unicipal  corporations  within  the  same.7    To 
this  end,  he  is  charged  with  the  duty  of  controlling  the 

of  the  administration,  for  which  purpose 


he    may    demand    reports,    institute    examinations    of 
records    and    investigate    the    conduct  of    subordinate 

1  Landesverwaltungsgesetz,  July  30,  1883  (G.  S.  1883,  p.  195,  §  8). 
8  Instruction  of  1825,  §§  2,  3.  8  Hue  de  Grais,  p.  71,  n.  8. 

4  See  p.  161.  6  L.  V.  G.  1883,  §§  137-139- 

6  Instruction  of  1825,  §  i,  II. 

7  Provinzialordnung,  June  29,  1875  (G.  S.  1875,  p.  335,  §§  114-117). 


THE   ORGANS   OF   ADMINISTRATION  83 

officials.  He  is  the  last  instance  in  questions  of  com- 
munal and  of  Circle  administration 1  and  may  tem- 
porarily suspend  the  acts  of  the  Province  Corporation.2 
Furthermore,  he  is  the  last  hierarchical  authority  for 
protests  against  police  orders  of  the  lower  authorities. 

Finally,  the  Province  President  acts  as  personal  rep- 
resentative of  the  King  and  his  Ministers  in  a  variety 
of  concerns,  which  function  was  originally  the  only  one 
intrusted  to  this  officer.  In  this  capacity,  he  convokes 
and  adjourns  the  Province  Assembly  (Provinziallandtag) 
and  acts  as  intermediary  between  the  same  and  the 
state  authorities.  He  is,  moreover,  entitled,  in  person 
or  through  representatives,  to  attend  the  meetings  of 
the  Assembly  or  its  special  committees  and  has  a  right 
to  be  heard  at  any  time.3  Furthermore,  he  also  acts 
as  representative  of  the  central  authorities  in  exceptional 
cases,  such  as  war  or  other  urgent  necessity.4 

Stein's  ideal  of  an  element  of  lay  participation  in 
state  administration  was  finally  carried  out  in  the 
second  organ  of  state  administration,  the  Province  Coun- 
cil (Provinzialrat).  This  body,  whose  organization  is 
determined  by  the  law  of  i883,5  consists  of  the  Province 
President  as  chairman,  a  higher  administrative  official 
appointed  by  the  Minister  of  the  Interior  from  among 

1  ZustSndigkeitsgesetz,  Aug.  i,  1883  (G.  S.  1883,  p.  237,  §  7).  Kreis- 
ordnung,  Dec.  13,  1872  (G.  S.  1872,  p.  661,  §  177). 

2  L.  V.  G.  1883,  §§  127  and  130.  8  Prov.  O.  1875,  §§  26,  27. 
4  Instruction  of  1825,  §  n,  num.  2,  3.        B  L.  V.  G.  1883,  §§  10-15. 


84  PRINCIPLES   OF   PRUSSIAN  ADMINISTRATION 

those  active  at  the  seat  of  the  province  administration, 
and  five  non-professional  members.  These  five  last- 
named  members  are  chosen  for  the  term  of  six  years  by 
the  Province  Committee,1  from  among  those  qualified 
to  membership  in  the  Province  Assembly.2  For  each 
member,  a  substitute  is  chosen  and  one-half  of  the 
elected  members  go  out  of  office  every  three  years,  but 
are  reeligible.  They  are  removable  from  office  by  regu- 
lar disciplinary  proceedings.  They  are  unsalaried  offi- 
cers, but  receive  a  reimbursement  of  outlays  as  fixed  by 
the  Province  Assembly.3  The  functions  of  the  Province 
Council  are  to  cooperate  with  the  Province  President 
in  adopting  measures  and  regulations  for  the  general 
administration  of  the  Province 4  and  to  hear  and  con- 
sider protests  against  measures  of  the  District  Com- 
mittee.5 Its  actions  are  under  the  supervision  of  the 
Minister  of  the  Interior,6  whose  official  requirements 
and  directions  it  must  follow.7 

Thirdly,  there  exist  various  Province  Boards  for 
special  branches  of  administrative  activity.  These 
include  the  Province  Board  for  Indirect  Taxes  (Ober- 
zolldirektion) ;  the  Province  School  Board  (Provin- 
zialschulkollegium) ;  and  the  Province  Land  Board 
(Generalkommission).  The  first  and  the  last  of  these 

1  See  p.  89  ff.  2  See  p.  87  ff.          3  Prov.  O.,  p.  100. 

4  L.  V.  G.  1883,  §§  4,  139.  6  See  p.  102  ff. 

•  L.  V.  G.  1883,  §  48.  Ubid.  §49- 


THE   ORGANS   OF  ADMINISTRATION  85 

boards  are  wholly  separate  from  the  general  adminis- 

0 
trative  organization,   while  the  second  and   third  are 

presided  over  by  the  Province  President. 

The  City  of  Berlin,  as  a  subdivision  of  state  adminis- 
tration, is  legally  distinct  from  the  Province  of  Bran- 
denburg, within  the  boundaries  of  which  it  lies.1  It 
has,  however,  the  same  Province  President  and  the  same 
special  boards  as  the  latter.  It  is  without  a  Province 
Council,  however,  whose  functions  as  a  direct  adminis- 
trative organ  are  exercised  by  the  Province  President, 
in  other  cases  by  the  competent  Ministers.2 

The  territory  of  the  former  Hohenzollern  Principali- 
ties 3  which  does  not  fall  within  any  province  has  neither 
Province  President  nor  Province  Council.  Their  func- 
tions are  exercised  partly  by  the  District  President 
(Regierungsprasident)  ;  partly  by  the  special  boards  of 
the  neighboring  Rhine  Province;  and,  so  far  as  not 
otherwise  ordained  by  law,  by  the  competent  Minister.4 

Province  Local  Administration 

Not  only  are  the  Provinces  administrative  subdivi- 
sions for  the  exercise  of  state  functions,  but  they  are 


43. 

3  Annexed  to  Prussia  upon  voluntary  cession  in  1850,  Law  of  March  12, 
1850  (G.  S.  1850,  pp.  289,  295). 

4L.  V.  G.,  §  5;  Order,  Jan.  7,  1852  (G.  S.  1852,  p.  35);  Edict, 
Aug.  n,  1809  (A.  V.  B.  1809,  p.  355). 


86  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

also  public  corporations  for  the  management  of  local 
concerns;  a  character  they  first  acquired  in  1823  to  a 
limited  extent,1  when  they  were  constituted  on  the 
earlier  class  divisions.  This  feature  was  altered  and  the 
functions  of  the  corporation  greatly  increased  by  the 
later  reform  legislation.2 

The  Province  Corporation3  includes  both  juristic 
and  physical  persons.  Juristic  members  are  all  Circles 
within  the  Province  (these  Circles  being  in  their  turn 
public  corporations).  Physical  members  are  all  persons 
belonging  to  these  Circle  Corporations.  The  members 
of  the  Corporation  are  entitled  to  participation  in  the 
administration  of  the  same  and  to  a  voice  in  its  repre- 
sentative body.  Furthermore,  they  are  entitled  to  a 
co-user  in  the  public  institutions  of  the  Corporation,  as 
determined  by  law.  On  the  other  hand,  they  are  obliged 
to  contribute  to  the  financial  support  of  the  Corporation. 
The  territorial  boundaries  of  the  Province  Corporation 
are  alterable  by  act  of  the  legislature  only,  except  where 
a  change  in  the  limits  of  the  lowest  units  of  local  admin- 
istration operates  to  change  the  province  boundaries 
also.  The  Province  Corporations  are  empowered  to 

1  Law  of  June  5,  1823  (G.  S.  1823,  p.  129) 

2Prov.  O.  1875;  reenacted  with  some  changes  on  March  22,1881, 
and  published  on  the  same  day  (G.  S.  p.  233).  This  law  was  originally 
enacted  for  the  seven  eastern  provinces,  except  Posen.  For  the  exten- 
sion to  the  other  provinces,  see  Ch.  I,  p.  57. 

8  Prov.  O.  1875,  §§  1-8. 


THE   ORGANS   OF  ADMINISTRATION  87 

pass  by-laws  and  regulations  concerning  their  own 
organization  and  that  of  their  institutions,  so  far  as  not 
otherwise  determined  by  law. 

The  organs  of  the  Province  Corporation  are  the 
Province  Assembly  (Provinziallandtag),  the  Province 
Committee  (Provinzialausschuss),  the  Province  Director 
(Landesdirektor  or  Landeshauptman)  with  his  assist- 
ants and  such  special  commissions  as  the  Province 
Assembly  may  deem  desirable. 

The  Province  Assembly1  is  composed  of  representa- 
tives of  the  Circle  Corporations  within  the  Province. 
As  a  rule,  each  Circle  elects  two  representatives  and  for 
each  50,000  inhabitants  above  a  certain  minimum 
(varying  from  40,000  to  80,000,  according  to  the  prov- 
inces) an  additional  representative.  A  combination  of 
two  small  adjoining  Districts  for  voting  purposes  may, 
under  certain  conditions,  be  made.  The  representatives 
from  the  Rural  Circles  (Landkreise)  are  elected  by  the 
Circle  Assembly;  those  from  the  City  Circles  (Stadt- 
kreise),  by  the  joint  Assembly  of  City  Council  and 
Magistrat  or  executive  board.  Every  independent 
German  citizen  of  thirty  years  of  age  is  eligible  to  the 
Province  Assembly,  provided  he  has  not  been  deprived 
of  his  political  rights  and  provided  he  has  either  resided 
or  owned  realty  within  the  Province  for  a  year  past. 
The  election  is  for  a  period  of  six  years.  The  manner 

.  §§9-44. 


88  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

of  holding  elections  and  supplementary  elections  and  of 
entering  election  protests,  which  go  in  the  last  instance 
to  the  Supreme  Administrative  Court,  are  detailed  by 
the  act.  In  general,  the  Province  Assembly  itself 
judges  of  the  qualifications  of  its  members. 

The  Province  Assembly  meets  at  least  every  two 
years,  and  as  much  oftener  as  business  demands,  on  con- 
vocation by  the  King  through  his  agent,  the  Province 
President,  who  is  entitled  to  a  place  in  the  house  and  to 
be  heard  at  all  times.  The  meetings  of  the  Assembly 
are  public,  unless  otherwise  ordered  in  executive  session.1 
A  majority  of  the  members  constitute  a  quorum.  The 
members  of  the  Province  Committee,  as  well  as  the 
Province  Director  and  his  higher  assistants,  are  entitled 
to  an  advisory  voice  in  the  Assembly,  so  far  as  not 
themselves  members  thereof,  when  not  excluded  by 
special  resolution.  The  Assembly  adopts  its  own  rules 
of  business. 

The  general  powers  of  the  Assembly  are,  firstly,  to 
render  opinions  on  such  proposed  laws  -or  measures 
regarding  the  Province  as  are  submitted  to  it  for  that 
purpose  by  the  central  authorities.  Secondly,  the 
Assembly  represents  the  Corporation  and  manages  its 
affairs  and  such  other  matters  as  are  or  may  be  assigned 
to  it  by  royal  order  or  legislative  enactment.  These 
latter  include  among  others  the  passage  of  by-laws  and 
1  Its  place  of  meeting  is  regularly  in  the  Province  capital. 


THE   ORGANS   OF  ADMINISTRATION  89 

regulations  for  the  institutions  of  the  Province;  the  de- 
termination of  the  manner  of  raising  state  revenues,  so 
far  as  not  prescribed  by  law ;  the  meeting  of  necessary 
or  desirable  province  expenses,  by  levying  of  taxes, 
borrowing  of  money,  etc. ;  the  disposition  of  public 
property ;  the  determination  of  the  budget  and  finances 
of  the  Province;  the  principles  that  are  to  govern  the 
administrative  activities  of  the  province  authorities; 
the  creation  of  new  public  offices;  the  number,  salary 
and  manner  of  appointing  the  officers;  the  election  of 
the  Province  Director  and  his  superior  assistants,  as 
well  as  of  the  Province  Committee,  the  state  Province 
Boards  and  the  Special  Commissions ;  and  the  exercise 
of  such  additional  functions  as  may  otherwise  be  assigned 
to  it  by  law. 

The  Province  Committee  (Provinzialausschuss)  con- 
sists of  a  chairman  and  from  seven  to  thirteen  members 
elected  by  the  Province  Assembly  for  the  term  of  six 
years,  from  among  those  qualified  for  election  to  the 
Province  Assembly.  The  Province  Director  is  ex- 
qfficio  member,  but  is  not  eligible  for  the  chairmanship 
of  the  Committee.  Neither  Province  President,  Dis- 
trict Presidents  nor  province  officials  are  eligible  to  the 
Committee.  The  members  receive  a  reimbursement 
for  official  expenses.  One-half  go  out  of  office  every 
three  years,  are  reeligible,  and  are  removable  through 
the  regular  disciplinary  proceeding. 


90  PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

The  Province  Committee  l  meets  irregularly,  as  often 
as  business  requires,  upon  convocation  by  the  chairman. 
It  must  be  convoked  upon  written  demand  of  the 
Province  Director  or  one-half  of  its  members.  It  may 
also  fix  regular  days  for  its  sessions.  Its  order  of  busi- 
ness must  be  approved  by  the  Province  Assembly, 
whose  chairman  is  entitled  to  an  advisory  voice  in  the 
meetings  of  the  Committee,  as  are  also  the  higher 
officials  assistant  to  the  Province  Director. 

The  functions  of  the  Province  Committee  are  to  pre- 
pare and  execute  the  measures  of  the  Province  Assembly, 
so  far  as  this  has  not  been  intrusted  to  special  commis- 
sions or  officials ;  to  administer  the  province  funds  and 
manage  the  province  institutions ;  to  appoint  all  prov- 
ince officials,  except  those  appointed  by  the  Province 
Assembly;  and  to  give  its  opinion  on  all  matters  sub- 
mitted to  it  by  the  Province  President  or  the  Ministers. 

The.  Province  Director2  (Landesdirektor  in  the 
Province  Brandenburg,  elsewhere  Landeshauptmann) 
is  the  executing  organ  for  the  Province  Corporation 
and,  with  his  assistant  officials,  carries  on  the  running 
administration.  He  is  elected  by  the  Assembly  for  a 
period  of  from  six  to  twelve  years.  His  election  must 
be  approved  by  the  King.  In  case  this  approval  is 
refused,  a  new  election  must  be  held.  If  this  election 
is  not  approved,  or  if  the  Assembly  fails  to  elect  at  all, 
i  Prov.  O.,  §§  4S-6i.  2p™v.  O.  1875,  §§  87-92. 


THE   ORGANS   OF  ADMINISTRATION  91 

the  Minister  of  the  Interior  may  appoint  a  central 
agent  to  fill  the  office,  until  an  officer  is  chosen  by  the 
Assembly  whose  election  receives  the  royal  approval. 
A  temporary  substitute  for  the  Province  Director  may 
be  appointed  by  the  Province  Committee. 

The  duties  of  the  Province  Director  are  to  prepare  and 
execute  the  determinations  of  the  Province  Committee, 
I  of  which  he  is  a  member ;  to  act  as  the  official  superior 
of  all  province  officers ;  to  act  as  agent  of  the  Province 
Corporation  in  its  dealings  with  official  bodies  and 
private  persons;  to  direct  the  official  correspondence; 
and  to  sign  all  communications  and  documents.  In 
the  fulfilment  of  his  function,  he  may  call  upon  the 
lower  authorities  for  aid. 

By  act  of  the  Province  Assembly,  additional  officers 
may  be  provided  for  to  assist  the  Province  Director, 
either  as  advisory  or  cooperative  assistants  (Landesrate) . 
They  are  appointed  by  the  Assembly.  Furthermore, 
additional  officers  and  commissions  may  be  constituted 
special  administrative  authorities  for  specific  branches 
of  administration  or  for  particular  institutions  by  act  of 
the  Assembly.  These  authorities  are  elected  by  the  Prov- 
ince Committee  (unless  this  right  is  especially  reserved 
by  the  Assembly)  and  are  subordinated  to  the  same.1 

1  The  necessary  subordinate  personnel  for  clerical  service  and  business 
routine  are  appointed  by  the  Province  Committee.  All  province  officials 
have  the  rights  and  duties  of  mediate  state  officers. 


Q2  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

Certain  variations  are  to  be  noted  in  the  Provinces 
into  which  the  organizatory  law  of  1875  was  later  intro- 
duced. In  Posen,  the  Assembly  is  still  constituted  on 
the  old  class  system,  by  Landed  Gentry  (122  represent- 
atives), Cities  (16  representatives),  and  Rural  Com- 
munes (8  representatives).1  The  members  of  the  Prov- 
ince Committee  must  be  approved  by  the  Minister  of 
the  Interior.2 

In  Hannover,  the  Province  Director  (Landeshaupt- 
mann)  is  not  ex-officio  member  of  the  Province  Com- 
mittee. Nor  is  he  a  bureaucratic  authority,  as  in  the 
other  provinces  —  save  Saxony,  where,  by  act  of  the 
Assembly,  the  collegial  system  has  been  introduced  — 
but  a  member  of  a  collegial  body,  the  Province  Direc- 
torate, which  includes,  besides  the  Province  Director, 
several  financial  counsellors  (Schatzrate).3 

In  Hessen-Nassau  there  is  a  Province  Assembly, 
but  no  Province  Committee.  The  administrative  func- 
tions of  the  latter  are  performed  by  the  Province  Presi- 
dent, while  the  electoral  functions  are  exercised  by  the 
Assembly.  This  variation  is  due  to  the  fact  that  each 
of  the  two  parts,  Hessen  and  Nassau,  had,  upon  their 
acquisition  and  combination  into  a  province,  been 

»Law,  March  27,  1824  (G.  S.  1824,  p.  141),  and  a  number  of  supple- 
mentary acts.  See  Hue  de  Grais,  §  81,  n.  28. 

2  Law  of  May  19,  1889  (G.  S.  1889,  p.  108).    Order  of  Nov.  5,  1889 

(G.  8.1889,  p.  177). 

3  G.  May  7, 1884  (G.  S.  1884,  p.  237),  S.  S.  p.  949- 


THE   ORGANS   OF  ADMINISTRATION  93 

constituted  a  District  Corporation,  endowed  with  many 
of  the  powers  elsewhere  assigned  to  the  Province  Cor- 
poration. The  field  of  activity  of  the  latter  is  therefore 
smaller  and  its  Assembly  is  merely  a  joint  body,  composed 
of  the  District  Assemblies.1 

In  the  Province  Schleswig-Holstein,  the  chief  varia- 
tion consists  in  that  the  Duchy  of  Lauenburg  and  the 
island  Helgoland,  though  within  the  boundaries  of  the 
Province  as  a  state  administrative  subdivision,  are  not 
part  of  the  Province  Corporation,  but  constitute  sepa- 
rate public  corporations.2 

The  territory  of  Hohenzollern,  which  is  not  part  of 
any  province  subdivision,  does  not  fall  within  any 
Province  Corporation  either,  but  constitutes  a  separate 
corporation  for  the  same  purposes.  It  is  organized 
like  a  Province  with  an  Assembly  and  a  Committee  and 
an  executing  organ  in  the  chairman  of  both.3 

Similarly,  the  City  of  Berlin  is  not  a  part  of  any 
Province  Corporation,4  but  is  itself  charged  with  the 
performance  of  the  duties  imposed  by  law  on  the  Prov- 
inces. It  has  no  separate  organs,  however,  for  these 
purposes,  but  acts  through  its  regular  city  government. 

To  meet  the  expenses  of  the  Province  Corporations, 
several  sources  of  income  are  provided  for  by  law, 

1  G.  June  8, 1885  (G.  S.  1885,  p.  242).  S.  S.  p.  958. 

2  G.  May  27,  1888  (G.  S.  1888,  p.  191),  S.  S.  p.  973. 

8  O.  April  2,  1873;  revised  July  2,  1900  (G.  S.  1900,  p.  324),  S.  S.  p. 
882.  *  Prov.  O.  1875,  §  2. 


94  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

state  subventions,  fees  and  contributions  and  province 
taxes.  The  former  were  established  in  1873  an<i  I^75 
and  increased  by  law  of  1902.  By  the  first  law,1  an 
appropriation  was  provided  to  meet  the  expenses  of  the 
proposed  province  administration  and  of  the  Circle 
Corporations.  By  the  second  law,2  in  elaboration  of  the 
first,  additional  subventions  were  granted  to  meet  the 
increased  expenses  imposed  by  charging  the  Province 
Corporations  with  many  functions  until  then  exercised 
by  the  Central  Government  and  at  that  time  transferred 
from  its  budget  to  that  of  the  local  corporations.  The 
obligatory  functions  of  the  Province  were  thereby 
greatly  increased,  and  it  became  charged  with  the  main- 
tenance or  assistance  in  the  maintenance  of  highways 
and  internal  improvements,  poorhouses  and  houses  of 
correction,  institutions  for  the  insane,  the  deaf  and 
dumb  and  blind,  charitable  institutions,  and  subsidies 
for  scientific  and  artistic  associations.  So  also  training 
schools  for  midwives  and  agricultural  institutes  were 
turned  over  to  the  Province  Corporations. 

Furthermore,  the  Provinces  were  charged  with  the 
aiding  of  financially  weak  public  corporations  of  lower 
order.  Finally,  by  the  law  of  I902,3  additional  yearly 
sums  were  appropriated  for  further  aid  in  the  domain 

1  Dotationsgesetz,  April  30,  1873  (G.  S.  1873,  p.  187),  S.  S.  p.  1004. 

«  July  8, 1875  (G.  S.  1875,  p.  497)- 

8  June  2,  1902  (G.  S.  1902,  p.  167),  S.  S.  p.  1016. 


THE   ORGANS   OF  ADMINISTRATION  95 

of  poor  support  and  of  the  construction  and  mainte- 
nance of  highways  and  bridges.  These  yearly  subsidies 
for  corporate  purposes  are  granted  not  only  to  the 
Province  Corporations,1  but  also  to  the  corporation  of 
Berlin,  that  of  the  Hohenzollern  lands  and  that  of 
Lauenburg,  which  exercise  in  these  directions  province 
functions. 

But  these  revenues  from  state  subvention  are  far 
from  adequate  to  meet  the  expenses  of  the  Province 
Corporation  and  it  must  therefore  make  use  of  its  tax- 
ing power.  The  exercise  of  this  power,  first  granted  in 
the  laws  relating  to  the  organization  of  Province  Cor- 
porations, is  regulated  uniformly  by  a  law  of  I9o6.2 
They  are  entitled  to  raise  revenue  in  the  form  of  license 
fees,  contributions  and  direct  taxes,  for  the  meeting  of 
their  expenses.  Direct  taxes,  however,  may  be  levied 
only  after  all  the  other  sources  of  income,  including 
province  capital  and  the  state  subventions,  have  been 
exhausted.  Industrial  undertakings  of  the  Province 
are  —  unless  they  supply  a  need  which  would  not  other- 
wise be  met  —  to  be  so  administered  as  to  reimburse 
the  Province  for  all  funds  invested,  with  interest  and 
redemption  of  the  capital.  Fees  (imposed  for  the  use 
of  public  institutions)  and  contributions  (imposed  upon 

1  In  Hessen-Nassau,  to  the  two  district  corporations  Cassel  and  Wies- 
baden. 

2  Kreis  und  Provinzial  Abgabengesetz,  April  23,  1906  (G.  S.  1906,  p. 
159,  §  21  ff.). 


96  PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

individuals  financially  benefited  by  province  under- 
takings) may  be  fixed  by  the  Assembly  itself  or  by  the 
Committee.  In  either  case,  objections  may  be  raised 
by  the  individual  concerned  and  communicated  to  the 
Committee.  Then  complaint  may  be  entered  before 
the  Supreme  Administrative  Court  within  two  weeks 
against  the  adverse  determination  of  the  Committee. 

Taxes  are  imposed,  not  directly  on  the  personal 
members  of  the  Corporation,  but  on  the  juristic  mem- 
bers, the  Rural  and  the  City  Circles.  They  are  levied 
on  the  basis  of  the  income  taxes  in  each  Circle,  and  the 
quotas  assigned  to  the  various  Circles  are  fixed  by  the 
Province  Committee.  Against  this  assignment,  objec- 
tions may  be  raised  by  the  Circle  Corporations  before 
the  Committee,  with  the  right  of  complaint  to  the  Su- 
preme Administrative  Court  against  an  adverse  deter- 
mination. Special  burdens  may,  by  determination  of 
the  Assembly,  be  imposed  on  a  Circle  which  is  thought 
to  be  especially  benefited  by  a  province  institution. 
The  taxes  imposed  must  be  paid  within  a  specified  time 
into  the  province  treasury. 

The  determination  of  fees  by  the  Assembly  or  Com- 
mittee and  the  special  taxation  of  individual  Circles 
must  be  approved  by  the  Minister  of  the  Interior. 
The  levying  of  taxes  amounting  to  more  than  25  per 
cent  of  the  income,  and  realty  taxes  used  as  a  basis, 
must  be  approved  by  both  Minister  of  the  Interior  and 


THE   ORGANS   OF  ADMINISTRATION  97 

the  Minister  of  Finance,  who  are  charged  with  the 
execution  of  this  law.1 

The  whole  management  of  the  Province  Corporation 
is  under  the  close  supervision  of  the  State.  The  organ 
for  this  purpose  is  the  Proyince^President.  There  is 
given  a  right  of  protest  against  his  determination  within 
two  weeks  to  the  Minister  of  the  Interior.  Besides  the 
supervisory__powers  of  the  Province  President,  whose 
orders  may  be  questioned  by  Province  Assembly,  Com- 
mittee or  Special  Board  through  complaint  before  the 
Supreme  Administrative  Court,  there  are  certain  powers 
exercised  immediately  by  the  Ministries.  So  the  regu- 
lations issued  by  the  Province  Assembly  for  a  variety 
of  province  institutions,  require  the  approval  of  the 
competent  Ministers,  in  certain  respects;  similarly  for 
the  regulations  governing  the  appointment,  removal  and 
pensioning  of  province  officers,  which  must  be  approved 
by  the  Minister  of  the  Interior. 

The  failure  of  a  Province  Corporation  to  provide  for 
legally  obligatory  expenses  may  be  met  by  an  order  of 
the  Province  President,  inserting  the  omitted  item  or 
items  into  the  budget.  Against  this  order,  the  Cor- 
poration may  also  enter  complaint  before  the  Supreme 
Administrative  Court  within  two  weeks. 

Finally  also,  the  Province  Assembly  may,  upon  pro- 

1  Slight  variations  are  introduced  to  meet  the  different  conditions  in 
Hessen-Nassau  and  Hohenzollern. 

H 


98  PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

posal  of  the  Ministry  of  State,  be  dissolved  by  royal 
order.  Such  dissolution  is  to  be  followed  by  new  elec- 
tions within  three  months  and  by  reconvention  of  the 
Assembly  within  six  months.  In  that  case,  the  Province 
Committee  and  the  special  Commissions  remain  active 
until  the  new  Assembly  has  actually  come  into  being. 


CHAPTER  JII  (Continued) 

DISTRICT  ADMINISTRATION 

THE  Districts  (Regierungsbezirke)  into  which  the 
Provinces  were  subdivided  by  the  law  of  1815  for  pur- 
poses of  state  administration,  are,  like  the  Provinces 
themselves,  determined  by  historical  boundaries.  Each 
Province  contains  from  two  to  six  of  these  Districts, 
except  Schleswig-Holstein,  which  has  only  one.  There 
is,  in  addition,  the  District  of  the  Hohenzollern  lands 
(Regierungsbezirk  Sigmaringen)  which  do  not  belong  to 
any  Province,  making  thirty-six  Districts  in  all.  Berlin 
is  not  within  any  District,  but  itself  exercises  District 
functions. 

The  organization  and  functions  of  the  district  au- 
thorities rest  on  a  series  of  enactments  beginning  in 
1808,  when  the  name  "Government"  (Regierung)  was 
first  applied  to  the  district  administrative  organs.1 
They  were  the  successors  of  the  former  war  and  domain 
chambers,  but  deprived  of  their  judicial  functions.2 

In  iSiy,3  a  detailed  order  defined  the  status  of  the 

1 0.  Dec.  26, 1808  (G.  S.  p.  464),  S.  S.  p.  152. 

2  See  Historical  Survey,  p.  42.          3  Instr.  Oct.  23, 1817  (G.  S.  p.  248). 

99 


100         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

"  Governments."  This  was  extensively  amended  in 
1825  *  and  again  largely  transformed  in  the  reform  meas- 
ures of  i883,2  to  which  general  enactments  have  been 
added  many  measures  affecting  the  district  authorities 
in  special  concerns. 

The  general  jurisdiction  of  the  district  authorities 
extends  over  all  matters  of  internal  administration  per- 
taining to  the  District  and  not  assigned  to  other  authori- 
ties. The  organs  of  District  administration  are  the 
so-called  "  Governments,"  with  a  District  President 
(Regierungsprasident)  as  chairman  and  the  District 
Committee  (Bezirksausschuss). 

The  "  Government"  is  a  collegial  body  under  the  chair- 
manship of  the  District  President,  and  is  as  a  rule  divided 
into  three  departments.3  It  comprises  the  chairmen 
of  the  individual  departments  (Oberregierungsrate),  a 
chief  forester,  a  number  of  counsellors  (Regierungsrate), 
technical  advisers  and  assistants  (Regierungsassessoren), 
besides  office  and  clerical  aids,  which  latter  are  not 
"members"  of  the  "Government."  The  manner  of 
doing  business  is  principally  by  departments. 

The  first  department,  dealing  with  general  internal 
administrative  affairs,  was  in  1803  discontinued  as  a 
department  of  the  "Government"  and  assigned  to  the 

1  Instr.  Dec.  31,  1825  (G.  S.  1826,  p.  5).  2  L.  V.  G.  1883. 

'Originally,  there  were  two  departments  (Instr.  1817).  Then  there 
were  four  (Instr.  1825),  of  which  the  fourth,  that  for  indirect  taxes,  was 
discontinued  upon  the  establishment  of  the  province  tax  boards. 


THE   ORGANS   OF  ADMINISTRATION  1O.- 

District  President  for  bureaucratic  administration.1 
The  functions  of  this  department,  as  fixed  by  the  instruc- 
tion of  iSiy,2  included  matters  of  general  police,  public 
health,  public  charity,  internal  improvements,  super- 
vision of  public  corporations  and  institutions,  coopera- 
tion in  military  administration,  collection  and  compila- 
tion of  statistics,  etc.,  so  far  as  special  organs  have  not 
been  provided  for  these  branches.  For  this  purpose, 
he  is  provided  with  a  special  aid  and  other  necessary 
assistants  and  attends  to  all  general  district  matters 
not  included  within  the  jurisdiction  of  the  other  two 
departments. 

Of  these  latter,  the  one  is  the  department  for  church 
and  school  matters,  the  other  for  direct  taxes,  domains* 
and  forest  preserves,  which  administer  the  branches  indi- 
cated by  their  titles,  so  far  as  not  otherwise  assigned  to 
special  bodies.  These  departments  act  in  the  main 
independently  within  their  fields,  but  certain  matters 
are  reserved  for  action  by  the  "Government"  as  a  body. 
So  proposed  legislation  and  new  arrangements  involving 
financial  burdens,  questions  not  pertaining  exclusively 
to  one  division,  emergency  measures,  questions  of  disci- 
pline, etc.,  must  all  be  submitted  for  general  consideration 
and  action  after  discussion  in  the  departments.3 

Acts  of  either  the  departments  or  the  whole  of  the 
"Government"  may  be  suspended  by  the  District  Presi- 
1  L.  V.  G.  §  18.  2  Instr.  1817,  §  2  ff.  8  Ibid.  §  5. 


10.2         PRINCIPLES   OF   PRUSSIAN  ADMINISTRATION 

dent  and  in  urgent  cases  be  superseded  by  his  own  order. 
Otherwise,  the  matter  in  dispute  is  to  be  submitted  to 
the  superior  authorities.1 

District  Committee 

Just  as  the  province  administration  includes  an  organ 
composed  in  part  of  lay  members  (Provinzialrat),  so 
the  district  administration  possesses  in  the  District 
Committee  (Bezirksausschuss)  an  organ  in  which  the 
lay  element  is  represented. 

This  body  was  created  in  1883,  by  the  union  of  the 
District  Council  and  the  District  Administrative  Court 
into  one  body.2  As  regards  its  administrative  activity 
the  Committee  was  therefore  the  successor  of  the  District 
Council,  established  in  i875.3 

The  District  Committee4  is  presided  over  by  the  Dis- 
trict President  and  comprises  two  professional  officials 
qualified  for  the  higher  administrative  and  judicial 
service,  respectively,  who  are  appointed  for  life  by  the 
King;  and  four  non-professional  members,  chosen  for 
six  years  by  the  Province  Committee  from  among  those 
inhabitants  of  the  District  who  are  eligible  to  the  Province 
Assembly.5  Certain  named  classes  of  state  officials  and 

1  L.  V.  G.  §  24.  4  L.  V.  G.  §§  28-35. 

2  L.  V.  G.  §  154,  Par.  2.  5  See  ante,  p.  87  ff. 

3  Prov.  O.  1875  (G.  S.  p.  233,  §§  62-86). 


THE   ORGANS   OF  ADMINISTRATION  103 

all  officials  of  the  Province  Corporation  are  ineligible. 
One-half  of  the  number  is  renewed  every  three  years. 

The  Committee  may  be  divided  into  sections  for 
various  parts  of  the  District,  in  which  case  the  President 
and  the  two  professional  officials  act  for  all  sections, 
unless  special  officials  are  named  therefor,  while  the  lay 
members  for  each  section  must  be  chosen  anew.  All 
members  of  the  Committee,  except  the  District  President, 
are  subject  to  the  law  concerning  misdemeanors  in 
office  of  judges,  1851,  and  fall  under  the  disciplinary 
jurisdiction  of  the  Supreme  Administrative  Court. 
The  lay  members  receive  per  diems  and  travelling 
expenses  as  determined  by  law. 

The  functions  of  the  Committee  are  of  two  distinct 
kinds.  It  acts  both  as  organ  of  active  administration 
and  as  administrative  court  of  first  or  second  instance. 
In  its  capacity  as  administrative  court,  it  will  be  examined 
in  another  connection.1  In  its  capacity  as  organ  of  ad- 
ministration, the  District  Committee  acts  both  as  deter- 
minative authority  and  as  supervisory  body  over  lower 
organs  of  administration.  So  it  must  approve  the  police 
measures  of  the  District  President,2  sanction  municipal 
statutes,3  hear  protests  against  determinations  of  the 
Circle  Committees 4  and  act  in  a  large  variety  of  other 
cases  arising  in  special  branches  of  administration.5 

1  See  p.  175  ff.        2  L.  V.  G.  §  139.          3  Zustand.  G.  §  16,  par.  3. 
4  L.  V.  G.  §  121.  *  Zustand.  G.,  Aug.  i,  1883,  G.  S.  237. 


104        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

The  general  distributive  law  of  1883  defined  a  large 
number  of  these  duties  with  respect  to  the  supervision 
of  the  lower  organs  of  local  administration  and  the 
regulation  of  poor  relief,  school  matters,  highways, 
gaming  and  fishing,  industrial  pursuits,  fire  protection, 
etc.  But  these  laws  have  been  supplemented  by 
numerous  particular  enactments.  In  all  its  activity, 
the  Committee  is  subject  to  the  supervision  of  the 
Province  President  as  superior  authority. 

The  above  system  of  district  administration  is  in 
effect  throughout  the  whole  of  Prussia,  with  but  very 
slight  variations.  The  Hohenzollern  lands  constitute  a 
District  similar  to  those  which  are  included  within 
Provinces.  The  City  of  Berlin,  however,  has  a  different 
organization  for  the  administration  of  the  matters 
elsewhere  intrusted  to  the  District  authorities.1  The 
District  President  is  replaced  by  the  Province  President 
of  Brandenburg  for  purposes  of  state  supervision  over 
the  Municipal  Corporation,  but  his  other  functions  are 
in  general  exercised  by  the  Police  President  of  Berlin. 
There  is  a  District  Committee  similar  to  that  in  other 
Districts,  the  chairman  of  which  is  designated  by  the 
King  from  among  the  higher  officials  active  in  Berlin. 
The  four  lay  members  are  chosen  by  the  Magistrat  and 
City  Council  sitting  as  a  body  under  the  Mayor.  The 
jurisdiction  of  the  Berlin  District  Committee  includes 

iL.V.  G.§§42ff. 


THE   ORGANS  OF  ADMINISTRATION  105 

the  functions  of  the  Committees  elsewhere  when  acting 
as  administrative  court  and  such  of  the  administrative 
functions  as  are  specially  assigned  to  it  by  law.  Other- 
wise, the  Province  President  exercises  the  latter  functions. 
As  regards  church  relations,  the  Police  President  replaces 
the  second  department1  of  the  District  "Government," 
and  the  third  department  is  replaced  by  a  special  board 
for  direct  taxes. 

The  Districts  were  not  made  the  basis  of  a  local  admin- 
istration by  a  public  corporation,  as  were  the  Provinces 
and  Circles.  They  remained  divisions  of  state  adminis- 
tration only,  except  in  the  one  province  Hessen-Nassau. 
Here  each  of  the  two  divisions,  belonging  before  1869 
to  different  principalities,  was  constituted  not  only  a 
District  for  state  administration,  but  a  unit  of  local 
administration  with  an  organization  and  a  jurisdiction 
resembling  that  of  the  Province  Corporations.2 


CIRCLE  ORGANIZATION 
State  Administration 

By  the  order  of  1815,  constituting  the  Provinces  and 
Districts  as  administrative  subdivisions  of  the  State, 
it  was  provided  that  each  District  be  composed  of 
" Circles."  "Circles"  were  ancient  territorial  divisions 
of  the  feudal  organization  which  continued  as  rural 

1  See  ante,  p.  101.  2  Law  of  June  8, 1885  (G.  S.  p.  242). 


106         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

administrative  units  during  the  seventeenth  and  eigh- 
teenth centuries.  The  existing  boundaries  were  to  be 
retained  as  far  as  feasible  in  the  redistricting  under- 
taken in  1815,  but  the  Circle  organization  was  to  be 
extended  to  the  entire  State,  including  both  Cities  and 
rural  territory  except  that  the  more  important  Cities 
were  to  constitute  Circles  for  themselves.  Thereby 
were  constituted  the  two  classes  of  Circles,  Rural  Circles 
(Landkreise)  and  City  Circles  (Stadtkreise)  with  distinct 
organization. 

The  present  organization  of  the  circle  authorities 
for  state  administration  is  based  'principally  on  the 
Circle  Government  Act  of  1872 1  for  the  Eastern  Prov- 
inces, excepting  Posen,  enacted  for  the  remaining  Prov- 
inces 1884-1889,  and  on  the  General  Administration 
Act  of  i883,2  for  the  same  Provinces  as  the  act  of 
1872  and  extended  in  the  same  way  to  the  other 
Provinces. 

The  organs  of  state  administration  for  Rural  Circles 
are  the  Circle  Director  (Landrat)  and  the  Circle  Com- 
mittee (Kreisausschuss).  The  Circle  Director,  an  officer 
whose  title  reaches  back  to  the  sixteenth  century,  is 
appointed  by  the  King.3  His  functions  are  in  general 

1  Dec.  13, 1872  (G.  S.  1872,  p.  661).  2  L.  V.  G.  1883. 

8  Kr.  O.  Dec.  13,  1872,  §  74.  An  historical  characteristic  of  the  earlier 
function  of  the  Landrat  as  representative  of  the  local  Circle  organiza- 
tion, perdures  in  the  right  of  the  Circle  Assembly  to  nominate  properly 
qualified  candidates  for  this  office  from  among  those  resident  in  the 


THE  ORGANS   OF  ADMINISTRATION  107 


to  direct  all  affairs  of  internal  administration,  so  far  as 
not  intrusted  to  other  organs,  and,  in  particular,  to  act 
as  the  central  police  authority  for  the  Circle  and  its 
subdivisions.1  His  police  measures  require  the  approval 
of  the  Circle  Committee.  He  is  also  state  officer  for 
military  tax  administration  in  the  Circle.  The  Circle 
Director  is  a  member  and  chairman  of  the  Circle  Com- 
mittee, acts  as  its  executive  organ  and  exercises  together 
with  it  extensive  control  over  the  local  administration 
of  the  circle  subdivisions.  In  his  capacity  as  executive 
organ  of  the  Circle  Committee,  the  Circle  Director 
becomes  an  organ  of  lojcal  administration  to  the  extent 
that  the  Committee  deals  with  affairs  of  the  Circle  Cor- 
poration.2 

The  system  of  lay  participation  in  state  administration 
has  been  applied  to  the  Circle  organization  in  the  con- 
stitution of  the  Circle  Committee  (Kreisausschuss). 
This  body,  originally  an  organ  of  the  local  administra- 
tion only,  was  by  the  Circle  Act  of  1872  charged  with 
extensive  functions  of  state  administration  also,  which 
activity  has  been  continually  enlarged  in  scope  by  later 
legislation. 

The  Circle  Committee 3  comprises  the  Circle  Director, 

Circle  for  at  least  a  year  or  owning  realty  therein  for  the  same  period. 
Furthermore,  the  Circle  Assembly  is  empowered  to  appoint  two  sub' 
stitutes  for  the  term  of  six  years  each.  Kr.  O.  §§  74,  75. 

1  Ibid.  §§  76-78.     L.  V.  G.  §  3. 

2  See  later,  p.  112.  *  Kr.  O.  1872,  §  130  ff. 


108         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

as  chairman;   and  six  non-professional  members  elected 
by  the  BiatfMt  Assembly  for  six  years,  one-third  going 


out  of  office  every  two  years.  Eligible  to  the  Committee 
is  every  member  of  the  Circle  Corporation  who  owns 
realty  or  mines  or  follows  an  industrial  pursuit  therein 
and  is  an  independent  1  German  citizen  in  full  possession 
of  his  political  rights.  Certain  classes  of  persons  are 
excluded  from  membership,  such  as  divines,  teachers  in 
elementary  schools  and  church  wardens.  Judicial 
officers  can  become  members  only  with  consent  of  the 
Minister.  The  members  of  the  Committee  may  be 
removed  from  office  by  the  regular  disciplinary  pro- 
ceeding. 

The  Committee  meets  upon  convocation  by  the  Circle 
Director,  who  is  responsible  for  the  prompt  disposal  of 
business  in  the  Committee.  Its  functions  as  organ  of 
state  administration  are  (a)  to  give  advisory  opinions 
on  all  matters  submitted  to  it  for  that  purpose  by  the 
state  authorities,  and  (b)  to  exercise  such  active  admin- 
istrative functions  as  may  by  law  be  assigned  to  it, 
either  acting  alone  or  in  conjunction  with  the  Circle 
Director.  This  has  been  done  in  large  measure,  partly 
by  transferring  to  the  Circle  Committee  many  powers 
formerly  belonging  to  the  District  "  Governments," 

1  "Independent"  means  (as  in  the  case  of  other  electoral  qualifications) 
twenty-one  years  of  age  and  not  limited  in  his  property  rights  by  judicial 
action. 


THE   ORGANS    OF  ADMINISTRATION  IOQ 


and  partly  by  the  addition  of  new  branches  of  adminis- 
trative activity.1 

Not  only  is  the  Circle  Committee  an  active  organ  of 
administration,  but  also,  like  the  District  Committee,  an 
administrative  court.  It  is  the  court  of  first  instance  for 
this  function  and  will  be  considered  in  this  connection 
elsewhere.2  In  its  originally  single  character  as  organ 
of  local  administration  it  will  be  treated  in  the  considera- 
tion of  the  Circle  Corporation  for  local  administration.3 

These  general  provisions  for  the  administration  of 
Rural  Circles  are  somewhat  modified  with  reference  to 
Cities  of  a  certain  size  not  constituting  Circles  for  them- 
selves and  hence  falling  within  the  territory  of  a  Rural 
Circle.  These  are  not  subject  to  supervision  with 
reference  to  their  functions  either  as  organs  of  local 
administration  or  as  agents  of  state  administration  on 
the  part  of  the  Circle  Director  and  Circle  Committee, 
as  are  the  Rural  Communes,  but  on  the  part  of  the  next 
authorities,  the  District  President  and  District  Com- 
mittee.4 For  purposes  of  state  administration  in 
Cities  of  over  10,000,  which  do  not  constitute  a  City 

1  These  provisions  concern  the  regulation  of  poor  support,  quartering 
of  soldiers,  public  highways,  drainage  and  streams,  dikes,  gaming  and 
fishing,  industrial  undertakings,  etc.,  as  well  as  supervisory  powers  over 
the  lower  organs  of  local  administration  and  are  contained  (to  a  consider- 
able extent)  in  the  general  distributive  law  of  1883  (Zustand.  G.  Aug.  30, 
1883;  G.  S.  1883,  p.  237)  and  a  variety  of  particular  enactments.  The 
members  receive  a  reimbursement  for  expenses,  as  fixed  by  act  of  the 
Assembly.  2  Cf.  p.  176.  3  See  p.  112  ff.  4  Zust.  G.  1883,  §  7. 


110         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

Circle,  the  executive  board  takes  the  place  of  the  Circle 
Committee.  Finally,  as  regards  local  police  activities,  a 
distinction  is  made,  not  indeed  between  Cities  and  Rural 
Communes  within  the  Circle,  but  between  Cities  over 
10,000  on  the  one  hand  and  Rural  Communes  and  smaller 
Cities  on  the  other.  Protests  and  complaints  regarding 
police  measures  of  the  former  are  to  be  laid  before  the 
District  President  and  the  District  Committee,  respec- 
tively, instead  of  before  the  Circle  Director  and  the 
Circle  Committee,  as  in  the  case  of  similar  measures  of 
the  smaller  Cities  and  Rural  Communes. 

The  act  of  1815  concerning  the  division  of  the  State 
into  administrative  units  provided  that  all  considerable 
Cities  with  their  urban  environs  be  constituted  Circles 
for  themselves.1  Under  that  provision,  a  certain  number 
of  the  larger  Cities  were  formed  into  separate  City 
Circles.  The  Circle  Act  of  1872  then  established  general 
regulations  for  the  organization  of  City  Circles.  This 
can  occur  in  one  of  two  ways.  Firstly,  Cities  of  over 
25,000,  exclusive  of  soldiers,  are,  upon  their  petition 
to  the  Minister  of  the  Interior,  to  be  declared  as  segre- 
gated from  the  Circle  to  which  they  belonged  and  as 
constituting  a  separate  Circle.  Secondly,  in  exceptional 
cases  the  King  may  act  in  the  same  way  with  reference 
to  Cities  of  less  than  25,000,  after  hearing  granted  to 
the  Province  Assembly.2 

*  O.  Apr.  30,  1815,  §§  36,  37-  2  Kr-  O.  1872,  §  4- 


THE   ORGANS   OF  ADMINISTRATION  III 

For  the  administration  of  state  functions  by  the 
City  Circles,  a  City  Committee  is  provided  in  place 
of  the  Circle  Committee.  This  City  Committee1 
(Stadtausschuss)  is  composed  of  the  Mayor  as  chairman 
and  four  members  of  the  Magistrat,  chosen  by  the 
Magistrat  for  the  length  of  their  term  as  members  of 
the  same.  In  those  City  Circles  where  there  is  no 
Magistrat,2  the  City  Committee  is  composed  of  the 
Mayor  and  four  members  chosen  for  six  years  by  the 
City  Council  from  among  the  citizens.3  The  scope  of 
activity  of  the  City  Committee  is  narrower  than  that  of 
its  analogy  in  the  Rural  Circle,  in  that  many  duties  of 
the  Circle  Committee  in  state  administration  (control 
over  Rural  Communes  and  other  rural  local  authorities, 
care  of  forests,  etc.)  do  from  their  very  nature  not  arise 
within  the  jurisdiction  of  the  City  Circles. 

Furthermore,  the  City  Committee,  though  composed 
of  local  organs,  has  no  functions  of  local  administration 
to  fulfil,  for  these  are  intrusted  in  the  City  Circles 
entirely  to  the  regular  organs  of  the  City  Corporation. 

Indeed,  the  chief  function  of  the  City  Committee  is 
that  of  acting  as  administrative  court  of  first  instance 
within  the  City  Circle. 

Only  slight  variations  in  organization  are  to  be  noted 
in  most  of  the  other  Provinces  into  which  the  Circle 

1 L.  V.  G.  §  37.  2  Rhine  Province,  etc.,  see  later,  p.  144. 

1  L.  V.  G.  §  38. 


112         PRINCIPLES    OF  PRUSSIAN   ADMINISTRATION 

administration  was  later  introduced.1  In  Westphalia, 
Cities  must  have  30,000 ; 2  in  the  Rhine  Province,3  40,000 
inhabitants  before  they  are  entitled  to  constitute  a  City 
Circle.  More  considerable  variations  are  found  in  the 
Province  Posen.  There,  the  six  lay  members  of  the 
Circle  Committee  are  appointed  by  the  Province  Presi- 
dent upon  presentation  by  the  Province  Assembly,  while 
the  Circle  Director  is  appointed  without  any  such 
presentation.4 

In  the  Hohenzollern  lands,  practically  the  same  or- 
ganization exists,  but  with  different  names  —  Oberamts- 
bezirke  instead  of  Kreis,  Oberamtman  instead  of  Landrat, 
Amtsausschuss  instead  of  Kreisausschuss.5 

Berlin  constitutes  a  separate  City  Circle  not  within 
the  limits  of  any  other  administrative  subdivision.6 

Circle  Local  Administration 

Circles  had  been  constituted  corporations  for  local 
administration  by  the  legislation  of  the  early  twenties, 
just  as  the  Provinces  had  been.  Like  the  Provinces,  too, 
they  were  organized  on  the  class  system,  but  given 
comparatively  narrow  powers  until  the  reform  legislation 

1  For  the  variations  in  all  provinces  except  Posen,  cf.  Stier  Somlo,  949. 

2  Law  of  July  31, 1886  (G.  S.  1886,  p.  217,  §  4),  S.  S.  p.  963. 

8  Law  of  May  30,  1887  (G.  S.  1887,  p.  209,  §  4),  S.  S.  p.  968. 
4  Law  of  May  19, 1889  (G.  S.  1889,  p.  108 ;  Arts,  iv  and  v,  B). 
6  O.  Apr.  2,  1873 ;  July  2,  1900  (G.  S.  1900,  p.  228). 
«L.V.  G.§§  41-47- 


THE   ORGANS   OF   ADMINISTRATION  113 

in  1872  established  them  on  a  broader  basis  with  wide 
powers  of  local  administration.1 

By  the  terms  of  this  Circle  Act  of  1872  and  its  emenda- 
tions, each  Circle  not  only  constitutes  a  subdivision  for 
state  administration,  but  a  corporation  for  the  manage- 
ment of  local  affairs.  Its  boundaries  are  determined 
and  changeable  by  law  only,  except  when  resulting  from 
a  change  of  boundaries  of  the  lower  administrative  sub- 
divisions.2 

All  residents  within  the  Corporation  are  members  there- 
of, —  excepting  the  active  military,  —  and  as  such  are 
entitled  to  participate  in  the  management  of  the  public 
affairs  of  the  Corporation  and  to  a  co-user  in  the  public  es- 
tablishments and  institutions  of  the  same.  The  members 
are  obliged  to  serve,  but  not  more  than  three  years,  in 
the  unsalaried  public  offices  of  the  Corporation,  unless 
prevented  by  sickness,  old  age  (over  60),  external  business, 
the  duties  of  a  state  office  or  by  special  circumstances  ac- 
cepted as  good  and  sufficient  excuse  by  the  Circle  Assem- 
bly. Failure  to  fulfil  one's  duties  in  this  regard  may 
result  in  loss  of  right  to  a  voice  in  the  circle  administra- 
tion and  up  to  25  per  cent  increase  in  one's  ordinary  taxes. 

The  Circle  Corporation  is  empowered  to  pass  by-laws, 

1  Kr.  O.  1872,  Dec.  13  (G.  S.  1872,  p.  661). 

J  So  for  instance  the  detaching  of  Cities  of  over  25,000  inhabitants 
by  order  of  the  Minister  of  the  Interior,  or  of  smaller  cities  by  royal 
order,  from  existing  Circles  to  constitute  individual  Circles  for  themselves, 
is  an  instance  of  change  of  boundaries  by  administrative  proceeding. 


114         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

so  far  as  permitted  or  directed  by  law,  and  otherwise 
concerning  its  local  affairs  so  far  as  not  regulated  by  law. 
Furthermore,  the  Corporation  may  pass  regulations  for 
the  management  of  circle  establishments. 

The  organs  of  the  Rural  Circle  Corporation  are  the 
Circle  Assembly  (Kreistag),  the  Circle  Committee 
(Kreisausschuss)  and  the  Circle  Director  (Landrat). 
City  Circles  have  no  special  organs  for  functions  of  the 
Circle  Corporation,  as  these  are  all  exercised  by  the 
regular  city  authorities,  nor  do  the  above  provisions  as 
to  membership  in  the  Circle  Corporation  and  as  to  rights 
and  duties  of  members  apply  to  City  Circles.1 

The  Circle  Assembly2  is  composed  of  at  least  twenty- 
five  members3  chosen  by  a  complicated  three-class 
system  of  voters.  The  first  class  is  composed  of  owners, 
both  persons  and  corporations,  Jof  .rural  realty  who 
pay  a  certain  minimum  real  property  tax  within  the 
Circle,  as  well  as  those  owners  of  industries  or  mines  in 
the  rural  ar^as.who  pay  a  certain  minimum  industry  tax. 

The  second  class  of  voters  comprises  all  Rural  Com- 
munes within  the  Circle  as  well  as  all  owners  of  autono- 
mous rural  estates  and  of  industrial  undertakings  not  to 
belonging  to  class  one. 

The  third  class  comprises  all  Cities  within  the  Circle. 

1  Kr.  O.  §  169.  2  Ibid.  §§  84-129. 

•For  every  5,000  inhabitants  above  25,000  and  less  than  100,000; 
and  for  every  10,000  above  100,000,  one  additional  member. 


THE   ORGANS   OF  ADMINISTRATION  115 

The  total  number  of  representatives  in  the  Circle 
Assembly  is  distributed  among  the  three  classes  of 
voters  as  follows:  The  Cities  are  entitled  to  a  number 
of  representatives  in  proportion  to  their  population, 
with  this  limitation  that  the  total  number  of  city  repre- 
sentatives may  not  exceed  one-half  of  the  entire  number 
of  representatives.  In  Circles  comprising  only  one  City, 
the  proportion  may  not  exceed  one- third.  The  remain- 
ing number  of  seats  is  divided  equally  between  the  first 
and  second  class  of  voters,  with  the  provision  that  if  the 
number  of  seats  falling  to  class  one  exceeds  the  number 
of  voters  therein,  the  excess  of  seats  falls  to  the  second 
class. 

For  the  polling  of  the  votes  in  the  first  class,  all  mem- 
bers of  the  same  who  are  independent  German  citizens 
over  twenty-one  years  of  age  and  in  full  possession 
of  their  rights  as  citizens,  meet  in  person  or  through 
proxies  under  chairmanship  of  the  Circle  Director  and 
vote  directly  for  their  representatives. 

The  election  in  the  second  class  is  indirect  through 
electors  from  each  of  the  Rural  Communes,  chosen  ac- 
cording to  their  population  by  the  Commune  Assembly 
and  Executive.  These  electors,  together  with  the  other 
voters  in  their  class,  meet  and  vote  under  the  supervision 
of  the  Circle  Director.  In  the  cities,  the  representa- 
tives are  chosen  directly  by  the  City  Council  and  the 
Magistrat. 


Il6         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

The  qualifications  for  members  of  the  Circle  Assembly 
are,  for  the  city  representatives,  residence  in  the  City  and 
possession  of  rights  as  citizens ;  for  the  other  two  classes, 
residence  within  the  Circle  for  one  year  and  ownership  of 
rural  realty  or  possession  of  the  right  to  vote  within  the 
respective  subdivision.  The  election  is  for  six  years, 
one-half  of  the  representatives  of  each  class  going  out 
of  office  every  three  years.  Election  protests  may  be 
entered  before  the  Election  Board  by  any  voter,  with 
the  possibility  of  removal  to  the  District  Committee. 

The  legislative  jurisdiction  of  the  Circle  Assembly, 
like  that  of  the  Province  Assembly,  is  not  an  enumerated 
but  a  general  one,  extending  to  all  matters  of  local  con- 
cern not  otherwise  regulated,  as  well  as  to  such  other 
matters  assigned  to  it  by  law.  In  particular,  its  function 
is  to  pass  the  circle  statutes  and  regulations,  to  deter- 
mine the  manner  of  raising  state  revenue  within  the  Circle, 
so  far  as  not  regulated  by  law,  to  provide  for  the  meeting 
of  necessary  or  desirable  circle  expenses  by  means  of 
public  capital,  loans  or  taxes,  to  pass  the  circle  budget 
and  pay  the  accrued  obligations,  to  establish  and  regulate 
the  local  circle  offices,  to  choose  the  circle  Committee 
and  special  Boards  or  Commissions  and  to  render  an 
advisory  opinion  on  all  matters  submitted  to  it  for  this 
purpose  by  the  state  authorities. 

The  Circle  Assembly  is  convened  for  the  business 
indicated  on  the  notice  of  convocation  by  the  Circle 


THE   ORGANS   OF  ADMINISTRATION  117 

Director,  who  acts  as  chairman  of  the  same  and  directs 
its  deliberations.  For  special  financial  matters,  a  careful 
notice  must  be  prepared  by  the  Circle  Committee  and 
sent  to  each  member  two  weeks  before  convening.  The 
meetings  are  ordinarily  public  and  a  majority  constitutes 
a  quorum.  Members  of  the  Circle  Committee  who  are 
not  also  members  of  the  Assembly  may  take  part  in  the 
consideration  of  questions  before  the  assembly,  but  with- 
out a  voice  in  the  voting. 

The  budget  is  prepared  by  the  Circle  Committee  and 
passed  by  the  Assembly,  which,  at  the  same  time,  re- 
ceives the  annual  reports  of  the  Committee  concerning 
the  circle  administration.  A  copy  of  the  budget,  as 
passed,  and  of  the  report  must  be  submitted  to  the 
District  President. 

The  Circle  Committee,  whose  organization  was  de- 
scribed in  considering  it  as  an  organ  of  state  adminis- 
tration, acts  as  administrative  body  for  the  local  Corpora- 
tion also.  In  this  capacity,  it  prepares  the  measures  to 
be  adopted  by  the  Assembly  and  is  charged  with  their 
execution,  so  far  as  special  commissions  or  single  officers 
are  not  provided  for  by  law.  It  administers  all  concerns 
of  the  Corporation  as  determined  by  the  Assembly  and 
in  conformity  with  the  budget  established  by  the  latter. 
Finally,  it  appoints  all  officers  of  the  Corporation  and 
directs  and  supervises  their  activity. 

Just  as  the  Circle  Committee  is  both  a  state  and  local 


Il8        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

organ,  so  the  Circle  Director  acts  both  as  head  of  the 
state  administration  in  the  Circle  and  at  the  same  time 
is  executive  for  the  local  organization.  As  chairman  of 
the  Assembly,  he  is  a  factor  in  the  general  legislative 
activities;  and  as  chairman  and  member  of  the  Com- 
mittee, he  is  engaged  in  the  active  administration.  So 
he  represents  the  Committee  in  its  relations  with  other 
authorities  and  private  individuals,  directs  the  official 
correspondence  and 'signs  the  same  in  the  name  of  the 
Committee.  Members  of  the  Committee  are  disqualified 
to  vote  in  matters  in  which  they  have  an  interest. 

It  is  within  the  competence  of  the  Assembly  to  provide 
special  commissions  or  officers  for  the  administration 
of  particular  institutions  or  other  circle  matters.  In 
that  case,  these  organs  are  under  the  direction  of  the 
Circle  Director,  who  may  at  any  time  act  as  chairman 
with  the  right  to  vote.  The  members  may  receive  a  per 
diem  and  travelling  expenses  as  fixed  by  the  Circle 
Assembly.1 

The  expenses  of  the  Circle  Corporation,  like  those 
of  the  Province  Corporations,  are  to  be  met  out  of  the 

JThe  only  important  variation  from  this  general  system  of  local 
circle  administration  as  inaugurated  in  1872  and  later  enacted  for  all 
the  Provinces  save  Posen,  occurs  in  the  last-named  Province,  where  the 
old  class  system  of  1828  is  still  at  the  basis  of  the  Province  Assembly. 
According  to  the  law  of  that  year  (L.  Dec.  20,  1828  (G.  S.  1829,  p.  3)), 
all  owners  of  the  Manorial  Estates  are  members,  each  City  in  the  Cir- 
cle sends  one  representative  and  all  Rural  Communes  together  have 
three  representatives. 


THE  ORGANS   OF   ADMINISTRATION  IIQ 

income  of  their  capital,  if  any;  out  of  fees  and  contri- 
butions; out  of  state  subventions;  and,  finally,  if 
those  are  not  sufficient,  out  of  taxes  to  be  raised  by  the 
Corporations.1 

Fees  and  contributions  may  be  collected,  as  in  the 
case  of  the  Provinces,  for  the  use  of  circle  public  insti- 
tutions and  establishments  and  for  special  financial 
advantages  accruing  as  a  result  of  the  location  of  such 
institutions  or  establishments.  State  subventions  are 
provided  for  the  Circle  Corporations  as  for  Province 
Corporations,  to  help  meet  the  expenses  of  the  circle 
local  government,2  and  for  the  special  functions  imposed 
by  law  on  the  Circles.  Furthermore,  the  Circle  Cor- 
poration receives  certain  license  fees,  such  as  hunting 
fee,  storehouse  fee  and  innkeepers  and  liquor  fee. 

To  the  extent  that  these  sources  of  income  are  insuffi- 
cient to  meet  the  expenses  of  the  Corporation,  certain 
taxes  may  be  levied,  both  indirect  and  direct,  but  the 
latter  only  to  the  extent  that  the  former  are  insufficient. 
The  indirect  taxes  which  may  be  levied  are  on  the  (i)  ac- 
quisition of  realty  or  rights  in  realty,  except  by  inherit- 
ance, eminent  domain  and  gifts  between  lineal  relatives ; 
(2)  on  receipt  of  permit  to  run  an  inn  or  a  retail 
liquor  business;  (3)  on  the  keeping  of  dogs.  Direct 

1  Law  of  Apr.  23, 1906  (G.  S.  1906,  p.  159). 

2  Law  of  April  30,  1873  (G.  S.  1873,  p.  187).    Law  of  July  8,  1875  (G. 
S.  1875,  P.  497,  §  26). 


120         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

taxes  are  levied  upon  the  Communes  and  Manorial 
Precincts  in  the  Circle,  on  the  basis  of  the  income  taxes 
within  the  same.  The  localization  of  the  burden  in 
the  case  of  undertakings  to  the  particular  benefit  of 
certain  portions  of  the  Circle  may  be  ordered  by  the 
Assembly. 

The  taxes  assessed  by  the  Assembly  must  be  paid 
into  the  circle  treasury  within  a  time  fixed  by  the 
Circle  Committee.  A  protest  may  be  entered  before 
the  latter  concerning  the  distribution  of  the  tax  burdens, 
with  the  right  of  complaint  to  the  District  Committee. 
Failure  to  conform  to  the  tax  ordinances  of  the  Circle 
Assembly  may  be  made  punishable  by  fine  up  to  30 
Marks,  the  amount  to  be  determined  in  each  case  by 
the  Circle  Committee. 

Enactments  of  the  Circle  Assembly  affecting  contri- 
butions, indirect  taxes,  inequalities  in  taxes,  the  levying 
of  direct  taxes  amounting  to  more  than  50  per  cent  of  the 
taxes  used  as  basis,  and  realty  tax  on  the  basis  of  valua- 
tion must  all  be  approved  by  the  District  Committee. 
The  approval  of  those  Assembly  enactments  affecting 
the  indirect  circle  taxes  and  the  levying  of  a  direct  tax 
exceeding  50  per  cent  of  the  taxes  used  as  basis  must 
be  confirmed  by  the  Ministers  of  the  Interior  and  of 
Finance,  or  by  the  Province  President,  if  authorized 
thereto  by  the  Ministers. 

State    control    over   local    administration   in    Rural 


THE  ORGANS   OF  ADMINISTRATION  121 

Circles  is  exercised  in  several  ways.1  In  the  first  place, 
certain  acts  of  the  Assembly  require  for  their  validity 
approval  by  superior  state  authorities.  So  circle 
statutes  must  be  approved  by  the  Crown ;  certain  kinds 
of  tax  measures,  by  the  Ministers  of  the  Interior  and  of 
Finance;  and  a  third  class  of  enactments,  by  the  Dis- 
trict Committee.  These  latter  include  alienation  of 
circle  realty  or  rights  in  realty,  the  incurrence  of  debts 
or  the  standing  as  surety  and  the  imposing  of  certain 
burdens  for  a  period  of  more  than  five  years. 

Secondly,  the  general  supervision  is  exercised  by  the 
District  President  and  Committee  in  the  first  instance 
and  by  the  Province  President  and  Council  in  the 
superior  and  the  last  instance.  Protests  must  be  entered 
within  two  weeks.  The  controlling  authorities  are 
charged  with  the  duty  of  seeing  that  the  circle  adminis- 
tration is  carried  on  legally  and  efficiently  and  may  to 
that  end  solicit  information,  examine  records  and  docu- 
ments and  institute  audits  at  any  time.  Acts  of  the 
Assembly,  of  the  Special  Commissions  or  of  the  Com- 
mittees in  local  matters  which  exceed  their  jurisdiction 
or  otherwise  violate  the  laws,  are  to  be  called  in  ques- 
tion with  suspensive  effect  by  the  Circle  Director,  who 
must  state  his  reasons  therefor.  Against  such  action 
on  the  part  of  the  Circle  Director,  the  body  affected 
may  lodge  a  complaint  with  the  District  Committee. 
iKr.  O.  §§  1 76-180. 


122         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

Failure  of  the  Circle  Corporation  to  provide  for  the 
obligatory  expenses  legally  imposed  upon  it  may  be 
met  by  the  action  of  the  District  President  in  entering 
the  same  upon  the  circle  budget  in  the  case  of  ordinary 
expenses,  or  in  providing  especially  for  them,  in  case  of 
extraordinary  expenses. 

Complaint  against  his  action  may  be  lodged  by  the 
Circle  before  the  Supreme  Administrative  Court  (0.  V. 
G.)  within  two  weeks.1 

Finally,  the  Circle  Assembly  may  be  dissolved,  upon 
motion  of  the  Ministry  of  State,  by  royal  order.  This 
must  be  followed  by  new  elections  within  six  months. 
The  existing  Circle  Committee  and  Special  Commis- 
sions remain  active  in  that  case  until  after  the  new 
elections. 

The  state  supervision  over  local  circle  administration 
in  the  City  Circles  is  exercised  by  the  same  authorities 
that  supervise  the  management  of  the  affairs  of  the  City 
Corporation,  except  for  Berlin,  which  has  special  super- 
visory authorities. 

Precinct  Administration 

Though  the  hierarchical  organization  of  state  admin- 
istration does  not  extend  below  the  Circle  for  the  whole 
of  Prussia,  there  was  a  still  lower  rural  subdivision 

1  Zust.  G.  §  4. 


THE   ORGANS   OF   ADMINISTRATION  123 

created  in  the  Circle  Act  of  1872  for  the  Eastern  Prov- 
inces, except  Posen,  and  extended  with  modifications  to 
the  other  Provinces,  except  Hessen-Nassau  and  Han- 
nover. The  purpose  of  this  new  class  of  authorities 
was  to  solve  the  problem  of  lower  police  administration 
up  to  then  exercised  by  Royal  Commissioners.  This 
area  of  rural  state  administration  is  the  Police  Precinct 
(Amtsbezirk).1  They  were  temporarily  formed  by  order 
of  the  Minister  of  the  Interior,  based  on  the  proposal 
of  the  Circle  Assembly  after  hearing  the  interested 
parties.  The  final  fixing  of  their  boundaries  was  deter- 
mined by  the  Minister  of  the  Interior  in  collaboration 
with  the  Circle  Committee  after  hearing  the  interested 
parties  and  the  Assembly. 

The  principles  governing  the  formation  of  the  Pre- 
cincts were  that  each  should  comprise  a  closed  com- 
pact area  of  a  size  that  should  permit  a  direct  admin- 
istration by  honorary  officials  and  yet  large  enough  to 
insure  the  performance  of  the  duties  imposed  upon  it 
by  law.  Generally  the  Police  Precincts  are  composed 
of  several  Communes  and  Manorial  Precincts  geographi- 
cally connected,  but  smaller  Communes  may  also  be  con- 
stituted separate  Police  Precincts  at  their  own  request, 
if  they  are  able  to  conduct  the  affairs  of  such  a  district 
and  if  geographical  considerations  do  not  necessitate 
the  joining  of  other  Communes  or  Manorial  Precincts. 
1  Kr.  O.  §§  21-73. 


124         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

Even  single  Manorial  Precincts  may  at  their  request  be 
constituted  separate  Police  Precincts  if  geographically 
adapted  to  that  end.  The  functions  of  the  Police 
Precinct  are  purely  state,  not  local  functions,  and  com- 
prise the  so-called  police  administration. 

The  organs  of  precinct  administration  are  the  Pre- 
cinct Director  (Amtsvorsteher)  and  the  Precinct  Com- 
mittee (Amtsausschuss) .  The  former  is  appointed  for 
six  years  by  the  Province  President  from  a  list  pre- 
pared by  the  Circle  Assembly,  or,  upon  its  failure  to 
act,  by  the  Province  Council.  In  Police  Precincts 
consisting  of  only  one  Commune  or  Manorial  Precinct, 
the  Commune  or  Manorial  Director  is  at  the  same  time 
Precinct  Director.  In  case  no  suitable  person  is  pro- 
posed by  the  Circle  Assembly,  the  Province  President 
appoints  a  Commissioner  to  act  as  such. 

The  duties  of  the  Precinct  Director  are  to  exercise 
police  powers  over  matters  of  public  safety,  order,  morals, 
poor  relief,  health,  highways,  streams,  fields  and  forests, 
industrial  pursuits,  buildings,  fire  protection,  etc.,  so 
far  as  not  otherwise  provided  by  law,  and  to  administer 
other  public  concerns  intrusted  to  him.  He  has  the 
right  and  duty  to  take  the  necessary  steps  for  main- 
taining public  order,  quiet  and  safety  and  to  issue  by 
and  with  the  consent  of  the  Precinct  Committee  neces- 
sary police  ordinances.  He  may  also  impose  penalties 
provisionally  subject  to  judicial  review.  The  Precinct 


THE   ORGANS   OF  ADMINISTRATION  125 

Director  may  issue  orders  to  the  Commune  and  Manorial 
Directors  which  they  may  be  compelled  to  follow,  but 
he  has  no  power  to  inflict  disciplinary  punishments. 
He  is  the  administrative  supervising  authority  over  the 
Precincts,  with  appeal  to  the  District  President.  His 
police  orders  must  be  obeyed  by  the  gendarmes  also, 
though  he  is  not  their  administrative  superior.  On  the 
other  hand,  the  aid  of  the  Precinct  Director  may  be 
required  by  the  Circle  authorities  for  the  performance 
of  their  functions.  The  Circle  Director  as  chairman  of 
the  Circle  Committee  exercises  the  administrative  con- 
trol. The  Precinct  Director  is  entitled  to  reimburse- 
ments for  official  expenses  to  an  amount  fixed  by  the 
Circle  Committee.  The  expenses  of  precinct  adminis- 
tration are  to  be  met  out  of  state  subventions  —  except 
where  a  single  Commune  or  Manorial  Precinct  consti- 
tutes a  Police  Precinct  —  and  precinct  taxes,  so  far  as 
necessary.  The  Circle  Director  may  compel  the  taking  of 
the  measures  necessary  to  meet  the  obligatory  expenses. 
By  the  side  of  the  Precinct  Director  stands  the  Pre- 
cinct Committee,  composed  of  at  least  one  representa- 
tive from  each  Commune  and  Manorial  Precinct  within 
the  Police  Precinct.  The  number  of  representatives 
from  each  of  the  smaller  divisions  is  determined  by  act 
of  the  Circle  Assembly  on  proposal  of  the  Circle  Com- 
mittee. In  those  Precincts  comprising  but  one  Com- 
mune, the  duties  of  the  Committee  are  discharged  by 


126         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

the  Commune  Assembly.  In  those  Police  Precincts 
comprising  but  one  Manorial  Precinct,  there  is  no  Pre- 
cinct Committee.  The  duties  of  the  Committee  include 
the  control  of  all  expenses  and  sanctioning  of  those 
raised  by  the  Precinct,  the  approval  of  police  measures 
of  the  Precinct  Director,  the  right  to  be  heard  as  regards 
changes  of  the  Precincts,  the  appointment  of  Special 
Commissions  or  officers  for  preparing  its  determinations 
and  action  on  matters  submitted  to  it  by  the  Precinct 
Director.  Illegal  acts  of  the  Committee  may  be  sus- 
pended by  the  Precinct  Director,  subject  to  appeal  to 
the  Circle  Committee. 

In  the  other  Provinces,  the  organization  of  the  lowest 
state  authorities  for  police  purposes  has  suffered  a 
variety  of  modifications,  except  in  Schleswig-Holstein, 
where  it  is  virtually  the  same  as  in  the  six  Provinces 
into  which  it  was  first  introduced.1 

In  Westphalia,  the  Precincts,  and  in  the  Rhine  Prov- 
ince, the  Rural  Mayoralties  (Landburgermeistereien) 
correspond  to  the  Police  Precincts  in  the  Eastern  Prov- 
inces, but  exercise  in  addition  powers  of  supervision 
over  the  Communes  and  are  furthermore  areas  for  local 
administration.  The  Director  is  in  practice  a  salaried 
official  and  appointed  for  life.2 

1  Law  of  May  26,  1888  (G.  S.  1888,  p.  139). 

2  Kr.  O.  for  Westphalia,  July  31, 1886  (G.  S.  1886,  p.  217).    Kr.  O.  for 
Rhine  Province,  May  30,  1887  (G.  S.  1887,  p.  209). 


THE   ORGANS   OF  ADMINISTRATION  127 

In  Posen,  there  are  no  such  divisions,  but  their  func- 
tions are  fulfilled  by  Commissaries  (Distriktskommis- 
sarien).1  In  Hannover,  the  precinct  organization  has 
not  been  introduced,  though  it  may  at  any  time  be 
established  by  royal  order,  upon  petition  of  the  Province 
Assembly.  The  police  functions  of  the  precinct  au- 
thorities are  exercised  in  Hannover  by  the  Circle  Direc- 
tor.2 Finally,  in  the  Province  Hessen-Nassau  also  there 
is  no  subdivision  corresponding  to  the  Police  Precincts. 
But  there  the  functions  of  the  Precinct  authorities  are 
exercised  by  the  Commune  officers,3  and  the  same  is 
true  of  the  Hohenzollern  lands,  where  no  precinct 
organization  exists. 

1  O.  Dec.  10,  1836  (v.  Kamptz  Annalen,  XX,  p.  943). 

2  Kr.  O.  for  Hannover,  May  6,  1884  (G.  S.  1884,  p.  181). 

3  Kr.  O.  for  Hessen-Nassau,  June  7, 1885  (G.  S.  1885,  p.  193). 


CHAPTER  III   (Continued) 

COMMUNE  GOVERNMENT 

THE  organization  for  local  administration  does  not 
stop  with  the  Circle  Corporations,  but  includes  still 
lower  subdivisions,  the  Communes  (Gemeinden),  the 
Manorial  Precincts  (Selbstandige  Gutsbezirke)  and 
Unions  of  these  (Zweckverbande  and  Samtgemeinden). 

Communes  are  of  two  kinds,  Rural  Communes  (Land- 
gemeinden)  and  Urban  Communes  or  Cities  (Stadt- 
gemeinden),  whose  organization  and  functions  are  deter- 
mined by  separate  enactments.  The  general  principles 
governing  the  system  of  commune  local  government 
were  first  laid  down  in  the  city  government  acts  and 
then  applied  to  the  Rural  Communes  as  well. 

City  Communes 

The  organization  of  city  government  in  Prussia  re- 
ceived its  broad  foundations  in  the  City  Government 
Act  of  1808,  prepared  and  put  into  force  by  Baron  von 
Stein.  This  constituted  a  uniform  system  for  the  whole 
of  Prussia  at  that  time,  but  it  was  not  extended  in  1815 
to  the  territories  then  acquired  and  reacquired,  which 

128 


THE   ORGANS   OF   ADMINISTRATION  I2Q 

retained  their  individual  systems.  In  its  revised  form, 
this  act  was  extended  in  1831  to  Posen,  Saxony  and  West- 
phalia. Then,  in  1853,  a  uniform  act 1  was  passed  for 
the  seven  Eastern  Provinces,2  superseding  the  earlier 
laws,  but  based  upon  them,  which  act,  with  later  amend- 
ments, determines  the  city  organization  in  those  Prov- 
inces to-day.  A  virtually  identical  law  was  enacted 
for  the  Province  Westphalia,  i856,3  and,  much  later,  for 
Hessen-Nassau,  1897,*  while  variations  of  greater  or 
less  extent  exist  in  the  other  Provinces. 

The  determination  as  to  whether  a  Commune  is  a 
Rural  or  a  City  Commune  is  conditioned  by  historical 
considerations.  The  act  of  1853  *s  declared  to  be  appli- 
cable to  those  Communes  which  have  had  a  representa- 
tive as  Cities  in  the  Provincial  Assemblies  and  to  such 
other  Communes  as  had  been  governed  by  the  prior 
city  acts  of  1808  and  of  1831. 

New  Cities  may  be  created  by  royal  order,  either  out 
of  localities  not  previously  provided  with  any  Commune 
organization  or  out  of  Rural  Communes.  In  the  first 
case,  the  Province  Assembly  must  be  heard ; 5  in  the 

1  Stadte  O.  May  30,  1853  (G.  S.  1853,  p.  261),  S.  S.  p.  517. 

2  The  Cities  in  New  Nearer  Pomerania  and  the  Isle  of  Riigen  were 
specially  excepted  in  the  act,  §§  i  and  3,  and  were  made  the  subject  of  a 
special  law,  G.  May  31, 1853  (G.  S.  1853,  p.  291). 

8  March  19,  1856  (G.  S.  1856,  p.  237),  S.  S.  p.  571. 
4  August  4,  1897  (G.  S.  1897,  p.  254),  S.  S.  p.  617. 
6  St.  0. 1853,  §§  i  and  2. 


130         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

second  case,  the  Commune  itself  must  petition  for  the 
change  and  both  Circle  and  Province  Assemblies  must 
be  heard.  In  the  same  way,  Cities  may  be  changed 
into  Rural  Communes.1 

The  territory  of  a  City  may  be  altered  through  ad- 
ministrative proceedings  in  various  ways.2  If  territory 
is  to  be  added  which  does  not  already  belong  to  a  Rural 
Commune  or  a  Manorial  Precinct,  this  is  done  by  act 
of  the  District  Committee,  after  hearing  granted  to  the 
parties  in  question  and  to  the  Circle  Assembly.  Secondly, 
entire  Rural  Communes  or  Manorial  Precincts  may  be 
incorporated  into  a  City,  both  parties  being  willing,  by 
royal  sanction,  after  hearing  granted  to  the  parties 
concerned,  to  the  Circle  Assembly  and  to  the  District 
Committee.  If  the  parties  concerned  cannot  agree, 
their  consent  may,  in  case  public  good  demands  it,  be 
replaced  by  determination  of  the  District  Committee, 
after  obtaining  the  opinion  of  the  Circle  Assembly. 
This  determination  may  be  protested  to  the  Province 
Council  and  its  decision  in  turn  may  be  protested  by 
the  Province  President  to  the  Ministry  of  State  for  final 
determination. 

The  separation  of  parts  of  a  Rural  Commune  or 
Manorial  Precinct  and  then  annexation  to  a  contiguous 
City,  or  vice  versa,  may  take  place  by  order  of  the  Dis- 

1  Landgemeindeordnung,  July  3,  1891  (G.  S.  1891,  p.  233,  §  i). 

2  St.  O.  §  2.    Amended  by  Zust.  G.  §  8,  i,  by  L.  G.  O.  §§  2,  3. 


THE   ORGANS   OF  ADMINISTRATION  131 

trict  Committee  after  obtaining  the  opinion  of  the 
Circle  Assembly.  This  may  be  done  with  the  consent 
of  all  parties  concerned,  including  the  owners  of  the 
land  in  question,  or  without  such  consent  if  the  public 
good  demands  it.  Against  such  determination  the  same 
protest  may  be  entered  as  in  the  previous  case.  Public 
good,  in  the  sense  here  used,  is  decisive  only  if  the  Rural 
Communes  or  Manorial  Precincts  are  incapable  of  ful- 
filling their  public  duties,  or  if  a  Manorial  Precinct  has 
been  split  up  in  a  way  to  necessitate  the  incorporation 
of  urban  portions  thereof  into  a  City,  or  if  geographical 
considerations  have  caused  conflict  of  interests  not 
reconcilable  by  other  means,  such  as  the  formation  of 
special  Unions.  The  regulation  of  the  relations  of  the 
parties  concerned  in  such  cases  is  intrusted  to  the  Dis- 
trict Committee,  to  be  guided  by  the  principles  laid 
down  in  the  act  regarding  public  burdens  and  public 
property.  Private  rights  or  legal  relations  are  not 
affected  by  such  changes. 

All  residents  of  the  City,  except  active  members  of  the 
military  service  not  domiciled  therein,  are  members  of 
the  Corporation.  As  such,  they  are  entitled  to  a  co- 
user  in  the  public  institutions  of  the  same  and  bound 
to  contribute  to  the  City's  burdens.  The  right  of 
citizenship  (Biirgerrecht)  includes  the  electoral  franchise, 
the  right  to  be  elected  to  the  City  Council  and  to  hold 
unsalaried  administrative  offices  in  the  City,  which 


132         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

rights  are  at  the  same  time  legal  duties.  The  rights 
and  duties  exist  for  every  independent  German  twenty- 
four  years  of  age  who  has  for  the  space  of  one  year 
past  resided  within  the  City  and  either  owned  a  living 
house,  pursued  a  permanent  trade  independently  as  chief 
means  of  income  within  the  same  or  been  assessed 
at  a  minimum  income  tax,  and  provided  he  has  received 
no  public  poor  relief,  has  paid  his  city  taxes  and  has 
not  been  deprived  of  his  political  rights  through  a  crimi- 
nal conviction.  A  citizen  loses  his  political  rights 
temporarily  during  bankruptcy  proceedings. 

By  special  act  of  a  City,  its  political  rights  may  be- 
fore the  expiration  of  a  year  be  conferred  upon  an  in- 
habitant coming  from  another  City  where  he  was  in 
possession  of  the  local  political  rights. 

City  Communes  are  public  corporations  with  a  legal 
right  to  the  local  administration  of  their  corporate  affairs 
as  determined  by  the  act.  They  have  general  power 
to  pass  special  ordinances,  relating  to  such  local  affairs 
of  the  corporation  and  to  those  rights  and  duties  of  its 
members,  concerning  which  variations  are  permitted  or 
which  are  not  specifically  mentioned  in  the  act.  But* 
these  ordinances  must  be  approved  by  the  District 
Committee.1 

The  organs  of  the  City  are  the  City  Council  (Stadt- 
verordneten  Versammlung)   and  the  Executive  Board 
1  St.  O.  §§  9,  ii. 


THE   ORGANS   OF  ADMINISTRATION  133 

(Magistral) .  The  City  Council  is  composed  of  from 
twelve  to  sixty  or  more  members,  according  to  the  size 
of  the  City,  or  as  may  be  determined  by  local  stat- 
ute. They  are  chosen  by  the  city  electorate,  divided 
for  that  purpose  into  three  classes,  according  to  the 
direct,  state,  province,  district,  circle  and  city  taxes 
paid.1 

The  first  class  contains  those  beginning  with  highest 
taxpayer,  in  descending  order,  the  sum  of  whose  taxes 
constitutes  one-third  of  the  total  taxes  paid.  The  second 
class  begins  in  the  same  way  with  the  highest  taxpayer 
not  included  in  the  first  class  and  comprises  all  those 
below  until  the  total  paid  by  that  class  also  amounts  to 
a  third,  and  the  third  class  comprises  the  smallest  tax- 
payers, whose  payments  amount  likewise  to  a  third  of 
the  tax  total.  Each  of  these  three  classes  of  voters 
elects  one-third  of  the  Councilmen,  not  necessarily  from 
among  the  members  of  the  particular  class.  In  Cities 
of  over  ten  thousand  inhabitants,  the  third  class  is  com- 
posed of  voters  who  pay  less  than  the  average  tax. 
Those  who  pay  more  than  that  average  are  then  divided 
into  the  first  and  second  classes,  according  to  the  system 
above  described.  These  Cities  may,  however,  introduce 
certain  modifications  by  city  ordinance,  as  provided 
in  the  act.  Voting  districts  may  be  provided,  when 
desirable,  by  order  of  the  Magistrat. 

1  Law  of  June  30,  1900  (G.  S.  1900,  p.  185),  S.  S.  p.  720. 


134         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

Membership  in  the  City  Council  is  open  to  the  qualified 
voters,  but  one-half  of  the  members  elected  by  each  class 
must  be  real  property  owners.  The  following  classes  of 
persons,  moreover,  are  ineligible  to  the  City  Council :  (a) 
officials  and  members  of  bodies  that  are  organs  of  state 
supervision  over  the  City ;  (b)  members  of  the  Magistrat 
and  all  salaried  city  officers ;  (c)  divines,  church  officials 
and  primary  teachers ;  (d)  judicial  officers ;  (e)  State's 
attorneys  and  police  officials.  Furthermore,  father  and 
son,  or  brothers  cannot  be  members  of  the  Council 
simultaneously  and,  if  elected  at  the  same  time,  the 
elder  only  can  qualify.  The  Councilmen  are  elected  for 
six  years,  one-third  going  out  every  .two  years. 

For  the  elections,  a  list  of  qualified  voters  is  kept  by 
the  Magistrat  and  corrected  annually  in  July.1  For 
two  weeks  thereafter,  the  list  is  publicly  displayed  and 
during  that  time  every  resident  may  enter  objections 
concerning  the  correctness  of  the  list  with  the  Magis- 
trat. The  validity  of  such  protests  is  passed  upon  by 
the  Council.  Against  its  determination,  complaint 
may  be  entered  before  the  District  Committee.  The 
regular  biennial  elections  occur  in  November.  For 
purposes  of  election,  the  Magistrat  may,  if  deemed 
necessary,  constitute  election  districts  and  determine 
according  to  population  the  number  of  Councilmen  to 
be  elected  in  each. 

1  This  date  may  be  changed  by  local  statute. 


THE   ORGANS    OF   ADMINISTRATION  135 

Two  weeks  before  election,  the  listed  voters  are 
notified  of  the  same,  indicating  the  place  in  which  and 
the  day  and  hours  of  the  day  on  which  the  votes  are  to 
be  cast  before  the  Election  Board.  The  voters  of  the 
third  class  vote  first,  then  those  of  the  second,  then 
those  of  the  first.  The  Election  Board  consists  of  the 
Mayor  and  two  Assistants  chosen  by  the  Council,  with 
substitutes  for  each  chosen  from  among  the  qualified 
voters.  The  voting  is  viva  voce  before  the  Election 
Board  and  consists  in  appearing  personally  and  naming 
as  many  persons  as  there  are  places  to  be  filled.  Those 
persons  are  elected  at  the  first  voting  who  head  the 
list  in  number  of  votes,  provided  they  have  received  a 
majority  of  the  votes  cast.  If  the  number  of  places 
to  be  filled  exceeds  the  number  of  candidates  who  have 
received  a  majority  of  the  votes,  a  second  election  is  to 
be  ordered  within  eight  days  to  fill  the  vacant  places. 
The  list  of  candidates  for  the  second  election  consists 
of  those  who  received  less  than  a  majority  of  the  votes 
in  the  first  election,  arranged  in  descending  order  and 
including  twice  as  many  names  as  there  are  places  to 
be  filled.  In  the  second  election,  the  highest  standing 
candidates  are  chosen  without  the  requirement  of  an 
absolute  majority. 

The  election  results  are  prepared  by  the  Election  Board 
and  published  by  the  Magistrat.  Objections  to  the  va- 
lidity of  the  election  may  be  raised  by  any  qualified  voter 


136        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

within  two  weeks  after  the  election  before  the  Magistrat. 
Such  objections  are  considered  by  the  City  Council, 
against  whose  decisions  complaint  may  be  entered  with 
the  District  Committee.  The  Council  meets  irregularly 
as  often  as  its  business  demands  or  upon  regular  days, 
as  it  may  determine,  but  in  either  case  the  business  to 
be  considered  must  be  announced  at  least  two  days 
before  the  meeting.  The  Council  elects  each  year  a 
chairman  and  a  secretary  from  among  its  own  members. 
The  Magistrat  is  to  be  invited  to  all  meetings  and  repre- 
sentatives of  the  Magistrat  may  be  required  to  attend. 
They  have  a  right  to  be  heard,  but  not  to  vote.  The 
chairman  convokes  the  Council,  which  he  must  do  upon 
demand  of  one-fourth  of  the  members  or  of  the  Magis- 
trat. A  majority  of  the  members  constitutes  a  quorum, 
and  a  majority  of  those  voting  is  necessary  to  valid 
action.  The  meetings  are  public,  unless  made  secret 
by  special  motion.  The  Council  frames  its  own  rules 
of  procedure,  to  be  approved  by  the  Magistrat. 

The  functions  of  the  City  Council 1  are  to  decide  all 
matters  of  local  concern,  so  far  as  these  are  not  assigned 
exclusively  to  the  Magistrat,  and  to  give  advisory 
opinions  on  all  matters  submitted  for  that  purpose  by 
the  state  supervisory  authorities.  Matters  not  of  local 
concern  fall  within  the  deliberative  jurisdiction  of  the 
Council,  only  if  specially  assigned  to  the  same  by  law 
1  St.  O.  §§  35-55- 


THE   ORGANS   OF  ADMINISTRATION  137 

or  by  act  of  the  supervisory  authority.  The  Council 
is  purely  a  legislating,  not  an  executing  authority. 
Determinations  of  the  Council  which  are  to  be  executed 
by  the  Magistrat  must  receive  the  approval  of  the  same, 
which  is,  however,  entitled  to  refuse  it,  giving  the  grounds 
for  such  refusal.  If  no  agreement  can  be  reached, 
even  by  means  of  a  special  committee,  the  decision 
of  the  question  rests  with  the  District  Committee. 
The  Council  elects  the  Magistrat  and  controls  the 
administration.  To  this  end,  it  may  take  all  necessary 
steps  to  assure  itself  of  the  proper  execution  of  its 
determinations  and  of  the  legal  disposition  of  City 
revenue.  It  determines  the  manner  of  employing  the 
capital  of  the  City.  The  consent  of  the  District  Com- 
mittee is  required  for  the  alienation  of  realty.  The  volun- 
tary sale  of  realty  or  rights  in  realty  can  take  place  only 
in  the  way  of  public  sale  including  six  weeks'  notice  and 
management  of  the  proceeding  by  a  judge  or  magis- 
trate, subject  to  the  approval  of  the  City  Council. 
The  consent  of  the  District  Committee  is  also  required 
for  the  taking  of  loans  that  increase  the  indebtedness  of 
the  City,  and  for  alterations  concerning  the  use  of 
city  commons.  The  consent  of  the  District  President 
is  required  for  the  sale  of  or  essential  changes  in  things 
of  particular  scientific,  historic  or  artistic  value. 

The  Council  must  pass  upon  the  budget,  which  is 
prepared  by  the  Magistrat.     Obligatory  items  not  pro- 


138         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

vided  for  in  the  budget  may  be  inserted  by  the  District 
President. 

The  Magistrat 1  consists  of  the  Mayor,  the  Assistant, 
or  second  Mayor,  a  number  of  unsalaried  Aldermen 
(Schoffen)  and  the  requisite  number  of  salaried  tech- 
nical officials,  all  elected  by  the  City  Council.  The 
Assistant  Mayor  and  Aldermen  are  elected  for  six  years 
and  the  Mayor  and  professional  members  for  twelve 
years.2  The  number  of  Aldermen  varies  from  two  to 
ten  or  more,  according  to  the  size  of  the  City,  and  may 
be  varied  by  local  statute.  One-half  of  the  Aldermen 
go  out  of  office  every  three  years,  but  are  reeligible. 
The  following  classes  of  persons  are  ineligible  to  the 
Magistrat:  officers  of  state  supervision,  members  of 
the  Council  and  lower  city  officials,  divines,  church 
officials  and  public  school-teachers,  judicial  officers, 
officials  in  the  States,  attorneys  in  office,  police  officials 
and  persons  pursuing  certain  named  callings.3  Further- 
more, near  relatives  are  excluded,  not  only  from  simul- 
taneous membership  in  the  Magistrat,  but  also  from 
simultaneous  membership  in  the  Magistrat  on  the  one 
part  and  in  the  Council  on  the  other. 

The  election  of  all  members  of  the  Magistrat  must 
be  approved  by  the  District  President,  except  that  in 

1  St.  O.  §§  29-34. 

2  The  Mayor  and  salaried  members  may  also  be  elected  for  life.    Law 
of  Feb.  25,  1856  (G.  S.  1856,  p.  129).      , 

3  Law  of  Feb.  7,  1835  (G.  S.  1835,  p.  18). 


THE   ORGANS   OF  ADMINISTRATION  139 

Cities  over  ten  thousand  the  approval  of  the  choice  of 
the  Mayor  and  Assistants  must  be  given  by  the  King. 
The  District  President  may  withhold  his  approval  only 
with  the  consent  of  the  District  Committee  or  of  the 
Minister  of  the  Interior.  Against  the  refusal  of  the 
District  President  and  District  Committee,  recourse 
may  be  had  to  the  Minister.  If  he  abides  by  the  deter- 
mination of  the  lower  authorities,  a  new  election  must 
be  had.  If  the  second  election  is  not  approved  or  if 
the  Council  fails  to  proceed  to  the  election,  or  reelects 
the  first  officer,  the  District  President  may  appoint  a 
Commissioner  to  fill  the  office  at  the  expense  of  the 
City,  until  an  officer  is  elected  whose  choice  receives  the 
necessary  approval. 

The  Magistrat,  as  head  of  the  local  government  and 
administrative  organ,  is  charged  with  the  following 
duties : 1  to  execute  the  laws  and  ordinances,  as  well  as 
administrative  orders  by  which  it  is  bound;  to  pre- 
pare the  determinations  of  the  Council,  including  the 
annual  budget  and  to  carry  out  such  of  them  as  it  ap- 
proves. It  must  withhold  approval  when  the  action 
of  the  Council  is  ultra  vires  or  illegal,  or  operates  to  the 
detriment  of  state  or  city  interests.  In  that  case,  the 
Magistrat  must  suspend  the  action  and  give  his  reasons, 
against  which  proceeding  the  Council  may  lodge  a 
complaint.  The  Magistrat  further  administers  the  city 
1  St.  o.  §§  56-63. 


140        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

institutions  or  supervises  such  as  are  administered  by 
special  authorities.  It  administers  also  the  city  reve- 
nues as  prescribed  by  the  Council  and  acts  as  auditing 
body.  It  manages  all  city  property,  appoints,  with 
the  advice  of  the  Council,  and  supervises  all  city  officers, 
preserves  all  public  documents,  represents  the  City 
legally  and  directs  the  correspondence  of  the  same,  and 
assesses  and  levies  the  city  taxes. 

/  The  Mayor  directs  and  supervises  the  entire  adminis- 
(trative  procedure.  He  may,  in  urgent  cases,  act  in 
place  of  the  Magistrat  and  lay  the  matter  before  the 
same  for  approval  at  the  next  meeting.  He  is  given  a 
measure  of  independent  disciplinary  power  over  city 
officials.  His  special  duties  are  to  manage  the  local 
police,  except  when  special  royal  authorities  are  charged 
therewith,1  to  assist  the  judicial  police  authorities  and 
act  as  local  State's  attorney.  He  is  furthermore  the 
organ  of  state  administration,  both  central  and  sub- 
ordinate, for  the  performance  of  state  functions  within 
the  City. 

The  Mayor  and  the  other  professional  officials  receive, 
in  addition  to  their  salary,  a  right  to  a  pension  as  regu- 
lated by  the  act.2 

Special  Commissions  may  be  constituted  for  the  run- 

1  In  §  2  of  the  law  for  police  administration  (G.  S.  1850,  op.  265),  the 
Minister  of  the  Interior  is  empowered  to  establish  state  police  organs  in 
the  more  important  cities.  2  St.  O.  §§  64,  65. 


THE  ORGANS   OF  ADMINISTRATION  141 

ning  administration  of  certain  branches  of  the  city  gov- 
ernment, or  for  temporary  purposes.  These  Committees 
may  be  composed  of  members  of  the  Magistrat  alone, 
or  of  both  Councilmen  and  members  of  the  Magistrat,  or 
also  include  other  qualified  voters.  These  Committees 
are  subordinated  to  the  Magistrat  and  are  presided  over 
by  a  member  of  the  same  appointed  by  the  Mayor.1 

Berlin  has  a  special  state  police  organism  (Polizei- 
prasidium)  with  powers  extending  over  the  territory  of 
Greater  Berlin.2 

The  costs  of  the  city  administration  are  met  out  of 
the  income  from  property,  state  or  other  subventions 
and  from  fees,  contributions,  indirect  and  direct  taxes.3 
Taxes  may  be  levied  only  so  far  as  the  other  means  of 
income  are  insufficient  to  meet  the  expenses,  and  direct 
taxes  only  after  indirect  taxes  have  proved  insufficient. 
Industrial  undertakings  of  the  City,  so  far  as  not  serving 
a  public  purpose  not  otherwise  to  be  met,  are  to  be  run 

1  Cities  of  less  than  2500  inhabitants  may,  upon  petition  of  the  Council, 
with  approval  of  the  District  Committee,  alter  the  regular  organiza- 
tion by  a  reduction  in  the  number  of  Councilmen  to  six  and  by 
having  in  place  of  the  Magistrat  a  single  Mayor  who  is  chairman 
of  the  Council,  with  the  right  to  vote,  assisted  by  two  or  three 
who  may  also  be  members  of  the  Council.  In  case  such  an  organiza- 
tion is  adopted,  the  Mayor  is  clothed  with  all  rights  and  duties  of  the 
Magistrat,  except  that  he  has  not  the  rights  to  approve  or  withhold 
approval  of  the  council  acts.  2  Cf.  Hue  de  Grais,  p.  237,  n.  5. 

8  Kommunalabgabengesetz,  July  14, 1893  (G.  S.  1893,  p.  152),  S.  S. 
p.  1020. 


142         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

in  a  manner  to  pay  all  expenses,  including  interest,  and 
to  redeem  the  capital.  Fees  include  charges  for  use  of 
public  institutions,  for  building  permits,  for  the  super- 
vision of  markets  and  public  performances  or  amuse- 
ments. Contributions  may  be  demanded  of  those  per- 
sons financially  benefited  by  city  establishments.  In- 
direct taxes  may  be  levied  within  the  limitations  of  the 
imperial  tax  laws,  such  as  taxes  on  amusements,  dog 
taxes,  etc.  Direct  taxes  are  to  be  assessed  equally  on 
all  concerned,  and  include  real  property  taxes,  trade 
taxes  and  income  taxes.  Certain  classes  of  realty  are 
exempted.  The  imposition  of  taxes  occurs  through 
local  tax  ordinances,  which  must  be  approved  by  the 
District  Committee. 

The  assessment  of  taxes  is  made  by  the  Magistrat 
or  by  a  special  Tax  Committee.  Objections  to  tax 
assessments  may  be  entered  with  the  Magistrat  within 
four  weeks,  and  against  the  decision  of  the  Magistrat 
complaint  may  be  lodged  before  the  District  Committee 
with  the  right  to  revision  by  the  Supreme  Administra- 
tive Court. 

The  organs  of  state  supervision  over  city  adminis- 
tration are  in  general  the  District  President  and  the 
District  Committee.1  Many  of  their  functions  in  this 
regard  have  already  been  referred  to  in  presenting  the 
jurisdiction  of  the  city  authorities.  The  District 
1  Zustand.  G.  §§  7-21. 


THE   ORGANS   OF  ADMINISTRATION  143 

President,  as  supervisory  organ,  approves  the  choice  of 
those  city  officials  whose  choice  requires  approval, 
sanctions  the  sale  or  alteration  of  city  property  which 
has  particular  scientific,  historical  or  artistic  value, 
compels  the  introduction  of  obligatory  expenses  into  the 
budget,  imposes  disciplinary  penalties  upon  city  officials 
and  passes  on  the  imposition  of  such  penalties  by  the 
Mayor,  and  orders  the  institution  of  disciplinary  proceed- 
ings looking  towards  removal  from  office.  The  District 
Committee  acts  as  supervisory  body  for  determining 
changes  in  city  limits  and  controversies  arising  from  the 
same,  the  representation  of  separate  communities  within 
a  City,  the  holding  of  special  elections,  the  validity  of 
elections  of  those  city  officials  whose  choice  need  not  be 
approved,  in  place  of  the  city  authorities  when  these  are 
rendered  incompetent  to  act  by  reason  of  private  in- 
terests of  the  officials  or  have  been  dissolved,  and  finally 
the  manner  of  execution  for  compelling  payments  by  the 
Cities  and  making  good  defalcations  by  city  officials. 

The  District  Committee  furthermore  acts  as  adminis- 
trative court  of  first  instance  for  all  the  controversies 
arising  out  of  the  city  administration  which  may  be 
taken  to  the  administrative  courts  and  which  are  not 
specifically  otherwise  provided  for. 

As  in  the  case  of  Province  and  Circle  Corporations, 
so  with  Cities  a  final  power  of  control  exists  in  the  right 
of  the  King  to  dissolve  the  representative  organ,  the 


144        PRINCIPLES   OF   PRUSSIAN  ADMINISTRATION 

City  Council,  upon  motion  of  the  Ministry  of  State. 
In  this  case  also  a  new  election  must  follow  within  six 
months  after  the  dissolution. 

The  City  Government  Acts  for  the  other  Provinces 
of  Prussia  all  present  variations  of  greater  or  less  im- 
portance. Most  similar  to  the  act  of  1853,  which  served 
as  basis,  are  the  acts  for  the  Province  Westphalia,  1856, 
for  the  Rhine  Province,  1856,  and  for  Hessen-Nassau, 
1897.  In  Westphalia1  the  mayorial  organization  op- 
tional for  Cities  under  twenty-five  hundred  in  the  East- 
ern Provinces  can  be  adopted  by  all  Cities,  irrespective 
of  size,  after  two  successive  passages  of  a  resolution  by 
the  Council  and  approval  by  the  Circle  Committee. 
In  the  Rhine  Province 2  the  mayorial  system  is  the  rule, 
and  the  Magistrat  system,  as  the  exception,  must  be 
specially  adopted.  In  Hessen-Nassau,  as  in  Westphalia, 
the  mayorial  system  may  be  introduced  into  all  Cities. 
Further  variations  are  that  two  years  of  residence  are 
there  required  for  the  acquisition  of  rights  as  citizens 
and  that  Mayors  of  Cities  with  less  than  twelve  hundred 
are  not  as  a  rule  salaried.  The  city  Frankfort  on  the 
Main,  though  incorporated  in  the  Province  Hessen- 
Nassau,  does  not  fall  under  the  Province  Act,  but  is 
governed  by  a  separate  enactment,3  also  modelled,  how- 

1  Law  of  March  19, 1856  (G.  S.  1856,  p.  237,  §  72),  S.  S.  p.  571. 

2  Law  of  May  15,  1856  (G.  S.  1856,  p.  406,  §  66),  S.  S.  p.  546. 
8  Law  of  March  25,  1867  (G.  S.  1867,  p.  401),  S.  S.  p.  703. 


THE   ORGANS   OF   ADMINISTRATION  145 

ever,  on  the  act  of  1853.  An  important  variation  exists 
in  that  the  three-class  system  of  voting  is  not  in  use 
and  that  the  Mayor  is  appointed  by  the  King.  In 
Frankfort  alone  among  Prussian  Cities,  the  elections  are 
by  secret  ballots.  In  Schleswig-Holstein  1  likewise  the 
voting  is  not  according  to  the  three-class  system  and  the 
Council  and  the  Magistrat  as  a  rule  meet  jointly. 

The  most  widely  divergent  provisions  as  to  City  gov- 
ernment are  found  in  the  Province  Hannover,  where 
the  revised  Hannoverian  City  Government  Act  of 
1858  2  is  still  in  force.  There  citizenship  must  be  ob- 
tained by  grant  from  the  Magistrat  and  is  not  acquired 
as  elsewhere  ipsojure  through  the  fulfilling  of  certain  pre- 
requisites. Necessary  to  obtaining  the  citizen's  status, 
is  either  ownership  of  a  house,  the  independent  practice 
of  an  artistic  profession,  or  the  pursuit  of  a  science  or 
permanent  industrial  trade  and  residence  within  the 
city.  The  members  of  the  Magistrat  are  elected  for 
life  by  the  existing  members  voting  jointly  with  an 
equal  number  of  Councillors.  The  Councillors  (Biirger- 
vorsteher)  are  elected  by  all  qualified  voters  without 
division  into  classes.  For  the  performance  of  certain 
classes  of  acts,  the  Magistrat  and  Council  meet  jointly 
as  in  Schleswig-Holstein. 

Finally  in  Hohenzollern,  the  two  Cities  Sigmaringen 

1  Law  of  April  14,  1869  (G.  S.  1869,  p.  589),  S.  S.  p.  671. 

J  Law  of  June  24, 1858  (Hannov.  G.  S.  1858,  p.  141),  S.  S.  p.  591. 


146        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

and  Hechingen  are  governed  by  the  act  of  iQOo,1  passed 
for  the  Rural  Communes. 


Rural  Communes 

For  all  Communes  which  are  not  Cities,  the  organiza- 
tion is  determined  by  Rural  Commune  Acts.  Here  again 
the  most  important  act  is  the  Rural  Commune  Act 
for  the  seven  Eastern  Provinces,2  which  served  also  as 
model  for  the  organization  laws  in  the  Province  Schles- 
wig-Holstein3  and  in  Hessen-Nassau.4  The  Provinces 
Westphalia,  Rhine  Province  and  Hannover  are  dealt 
with  in  somewhat  different  enactments. 

The  provisions  contained  in  the  Rural  Commune  Act 
are,  for  the  most  part,  the  same  as,  or  at  least  very  similar 
to,  those  enacted  for  City  Communes.  So  the  incor- 
poration into  Rural  Communes  of  territory  not  belong- 
ing to  other  Communes,  or  of  parts  or  the  whole  of  other 
Communes  or  Manorial  Precincts  or  the  separation  of 
territory,  etc.,  all  take  place  by  the  same  manner  of  pro- 
ceeding as  in  the  case  of  City  Communes.  The  legal 
nature  and  general  jurisdiction  of  the  Rural  Commune  is 
moreover  the  same  as  that  of  the  City.5  Membership 

1  G.  July  2, 1900.  S.  S.  p.  882. 

2  L.  G.  O.  July  3,  1891  (G.  S.  1891,  p.  233). 

3  Law  of  July  4,  1892  (G.  S.  1892,  p.  147),  S.  S.  p.  791. 

4  Law  of  Aug.  4,  1897  (G.  S.  1897,  p.  301),  S.  S.  p.  617. 
6  L.  G.  O.  §§  5,  6. 


THE   ORGANS   OF   ADMINISTRATION  147 

in  the  Corporation  is  determined  in  the  same  way  by 
residence  and  the  rights  and  duties  of  members  are  the 
same,  as  for  inhabitants  of  City  Communes.  The 
political  rights  of  the  citizens  are  conditioned  in  the 
same  way  also,  except  that  the  Rural  Communes  may 
require  a  grant  of  citizenship.  The  electoral  franchise 
is  conferred  also  upon  all  who  satisfy  a  minimum  prop- 
erty requirement,  including  corporations  or  other  legal 
persons,  the  state  exchequer,  and  women. 

The  organs  of  Rural  Commune  government,  similar  to 
those  of  Cities  in  the  Rhine  Province,  are  the  Commune 
Assembly1  (Gemeindevertretung)  and  the  Commune 
Director  (Gemeindevorsteher).  The  Assembly  com- 
prises the  Commune  Director  as  chairman  and  his 
Assistants  and  from  3  to  24  elective  Assemblymen. 
The  voting  for  the  Assemblymen  is  according  to  the 
three-class  system,  as  in  the  Cities,  and  the  proceeding  is 
quite  the  same. 

The  qualifications  and  disqualifications  for  Assembly- 
men are  the  same  as  those  for  City  Councillors,  but  two- 
thirds  of  the  members  of  the  Assembly  must  own  prop- 
erty within  the  Commune.  The  term  is  six  years  as  for 
Councilmen.  The  functions  of  the  Assembly  are  the 

1  In  Communes  where  there  are  less  than  forty  voters,  the  Assembly 
is  not  a  representative  body,  but  a  meeting  of  the  voters,  of  whom  two- 
thirds  must  be  property  owners.  The  voters  are  then  given  plural  votes 
up  to  four  in  number  according  to  the  real  property  taxes  paid  within 
the  Commune.  L.  G.  O. 


148         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

same  as  those  of  the  City  Councils,  both  with  regard  to 
the  general  scope  of  local  functions  and  to  the  obligatory 
performance  of  duties  imposed  by  law. 

The  active  administration  is  carried  on  by  the  Com- 
mune Director  (Gemeindevorsteher)  and  from  two  to 
six  Assistants  (Schoffen),  unsalaried  officials  elected 
for  six  years  by  the  Assembly  from  among  its  own  mem- 
bers. In  larger  Communes,  the  Director  may  be  a 
salaried  official,  elected  for  twelve  years,  and  so  may  the 
Assistants  be  when  this  is  found  necessary.  The  election 
must  be  approved  by  the  Circle  Director.  The  duties  of 
the  Commune  Director  are  in  general  the  same  as  those 
of  the  Mayor  in  Cities  of  less  than  2500  with  the  special 
mayorial  organizations.  A  collegial  Directorate,  com- 
posed of  the  Director  and  Assistants,  corresponding  to 
the  Magistrat  in  Cities,  may  be  introduced  in  the  larger 
Communes  by  local  by-law,  in  place  of  the  single  director 
system. 

The  revenue  system  of  the  Rural  Commune  is  regulated 
by  the  same  law 1  as  that  governing  the  Cities,  the  provi- 
sions of  that  law  being  applicable  to  all  Communes.  The 
state  supervision  over  Rural  Communes 2  is  virtually  the 
same  in  nature  and  extent  as  that  over  City  Communes, 
but  is  exercised  by  different  organs,  in  that  the  Circle 
Director  acts  in  the  place  of  the  District  President  and 
the  Circle  Committee  in  place  of  the  District  Committee. 

1  Komt.  Abg.  G.,  July  14,  1893.  2  Zust.  G.  §§  24-37. 


THE   ORGANS   OF   ADMINISTRATION  149 

Whereas  in  the  Rural  Commune  Acts  for  Schleswig- 
Holstein 1  and  for  Hessen-Nassau 2  only  minor  variations 
are  to  be  noted  from  the  general  system  above  described, 
more  considerable  departures  are  to  be  found  in  the 
other  three  Provinces. 

In  Westphalia,  the  Rural  Commune  organization  is 
regulated  by  act  of  1856*  The  most  important  varia- 
tion consists  in  the  organization  of  Precincts  (Amter) 
composed  of  one  or  more  Communes,  which  play  a 
considerable  part  in  communal  administration  for  local 
affairs  of  interest  to  more  than  one  Commune.  The 
Precinct,  at  the  head  of  which  stands  the  Amtman  ap- 
pointed by  the  Province  President,  may  be  endowed  with 
all  the  powers  and  characteristics  of  a  Commune,  besides 
being  an  organ  of  state  administration.  A  similar 
institution  is  found  in  the  Rhine  Province,  where  the 
compound  communes  are  called  Mayoralties  (Biirger- 
meistereien)  with  a  rural  Mayor  (Landbiirgermeister)  at 
the  head.  In  both  Provinces,  therefore,  a  considerable 
part  of  the  functions  of  the  Rural  Commune  are  trans- 
ferred to  the  composite  Commune. 

In  Hannover,  the  Hanoverian  law  of  1859 4  still  regu- 
lates the  government  of  Rural  Communes.  The  chief 
variations  it  presents  deal,  as  in  the  City  Government 

1  Law  of  July  4,  1892  (G.  S.  1892,  p.  147). 

2  Law  of  Aug.  4,  1897  (G.  S.  1897,  p.  301). 

3  Law  of  Mar.  19,  1856  (G.  S.  1856,  p.  265). 

4  Law  of  April  28,  1859  (Hannov.  G.  S.  1859,  P-  393),  S.  S.  p.  869. 


150        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

Act,  with  the  electoral  franchise.  This  belongs  to  all 
owners  of  realty  and  to  all  independent  males  of  good 
character,  in  full  possession  of  their  political  rights. 

In  Hohenzollern,  finally,  the  Commune  Act  of  igoo,1 
applicable  to  the  two  Cities,  also  provided  for  a  commune 
organization  based  in  all  material  respects  on  the  act 
of  1891  for  the  Eastern  Provinces. 

Manorial  Precincts 

There  remains,  alongside  the  Rural  Commune,  a 
peculiar  Prussian  administrative  subdivision  for  rural 
local  government  called  the  Manorial  Precinct  (Guts- 
bezirk).  These  Precincts,  the  direct  historical  successors 
to  the  feudal  manorial  estates,  are  still  found  in  all  Prov- 
inces of  Prussia  saving  the  Rhine  Province,  but  are 
more  numerous  in  the  East.  Their  organization  and 
jurisdiction  is  regulated  in  the  Rural  Commune  Act 
for  the  Eastern  Provinces.2  In  these  Precincts,  the  owner 
or  director  of  the  estate  is  charged  with  the  duties 
elsewhere  imposed  on  the  rural  commune  governments, 
and  exercises  the  powers  of  the  Commune  Director. 
The  Manorial  Director  (Gutsvorsteher),  whether  he  be 
the  owner  of  the  estate  or  a  substitute  appointed  by 
him,  must  be  approved  by  the  Circle  Director. 

Special  Unions  (Zweckverbande)  of  Communes  with 

1  Law  of  July  2, 1900  (G.  S.  1900,  p.  189). 
*L.  G.  O.  1891,  §§  122-127. 


THE   ORGANS   OF   ADMINISTRATION 

each  other,  with  other  public  corporations  or  with 
Manorial  Precincts  may  be  formed  for  particular  purposes. 
These  were  first  provided  for  the  Eastern  Provinces  by 
the  Rural  Commune  Act  of  1891,  but  are  now  uniformly 
regulated  for  the  whole  State  by  law  of  191 1.1  They 
are  formed  as  a  rule  by  voluntary  union,  but  may  be 
made  obligatory  for  purposes  that  constitute  legal 
duties  of  the  single  members,  such  as  schools,  highways, 
poor  relief,  etc.  If  composed  wholly  of  public  corpora- 
tions, they  are  themselves  public  corporations  with  all 
powers  necessary  to  the  fulfilling  of  their  purpose.  There 
must  always  be  a  Union  Director  (Verbandsvorsteher) 
and  a  Union  Committee  (Verbandsausschuss) ,  but  the 
details  of  the  organization  may  be  regulated  by  by-laws. 
A  special  Union  was  created  for  the  territory  of  Greater 
Berlin  by  law  of  191 1,2  regulating  the  running  of  street 
railways,  the  building  and  dwelling-house  conditions 
and  the  acquisition  and  maintenance  of  open  spaces  with- 
in the  area.  The  organization  includes  a  Union  Director 
elected  for  six  to  seventeen  years,  a  Union  Assembly, 
composed  of  representatives  of  the  members  of  the 
Union,  and  a  Union  Committee,  chosen  by  the  Assembly. 

JLaw  of  July  19,  1911  (G.  S.  1911,  p.  115),  S.  S.  p.  2305. 
2  Law  of  July  19,  1911  (G.  S.  1911,  p.  123),  S.  S.  p.  2305. 


CHAPTER  IV 

FORMS  AND  LEGAL  EFFECT  OF  ADMINISTRATIVE 
ACTION 

ADMINISTRATION,  as  has  been  seen,  is  a  form  of  state 
activity  that  belongs  to  the  functions  of  the  executive 
branch  of  government.  Its  characteristic  manifestation 
would  therefore  seem  to  be  execution,  that  is,  the  realiza- 
tion of  declarations  of  will  framed  by  the  will-declaring 
organ  of  the  government,  the  legislature.  And  this  is 
indeed  an  important  function  of  the  administration, 
but  not  the  only  one.  On  examining  the  various  mani- 
festations of  administrative  activity,  one  finds  that  they, 
like  those  of  government  in  general,  fall  into  three  general 
groups.  The  administration,  as  well  as  the  state  as  a 
V  whole,  declares  its  will  in  enactments,  general  or  specific 
/  \  (legislation) ;  it  enforces  obedience  to  its  own  orders  and 
\hose  of  the  legislature  (execution) ;  and  it  settles  dis- 
putes and  controversies  that  arise  out  of  its  orders  and 
enactments  (adjudication) . 

Considering  first  the  enactment  of  ordinances  by  the 
administration,  i.e.  its  legislative  activity,  it  is  seen  that 
such  enactments  may  be  classified  in  various  ways. 

152 


LEGAL  EFFECT   OF  ADMINISTRATIVE  ACTION        153 

Firstly,  they  are  either  ordinances  establishing  a  general 
rule  (Verordnungen)  or  special  orders  applied  to  concrete 
cases  (Verfiigungen). 

General  ordinances  (Verordnungen)  again  may  deal 
either  with  the  internal  organization  of  the  adminis- 
tration, not  affecting  third  persons  (Verwaltungsverord- 
nungen),  or  they  may  have  the  character  of  rules  of  law 
which  do  affect  the  legal  relations  of  third  persons 
(Rechtsverordnungen)  .J 

The  first  type  of  ordinances  is  issued  by  virtue  of 
an  inherent  function  of  the  administration,  comprised 
in  the  jurisdiction  assigned  to  the  executive  branch  of 
government  through  the  constitutional  distribution  of 
powers.  It  is  therefore  not  limited  by  any  necessity 
of  legislative  authorization,  but  can  be  freely  exercised 
by  the  administrative  organs  so  far  as  not  directly  re- 
stricted by  act  of  the  legislature.2 

These  internal  ordinances  are  of  three  general  kinds : 
(a)  acts  of  organization ;  (b)  service  orders ;  (c)  measures 
for  the  establishment  and  government  of  public  institu- 
tions, (a)  The  authority  to  create  offices  and  regulate 
the  filling  of  the  same  may  be  exercised  by  the  executive 

1  Georg  Meyer,  "Lehrbuch d.  Deutschen Staatsrechts,"  §§  159, 160, 161 ; 
Anschiitz,  Holtzendorff's  "Encyklopaedie  der  Rechtswissenschaft,"  §  40; 
Otto  Mayer,  "Verwaltungsrecht,"  I,  p.  67  ff. 

2 Holtzendorff,  "Encyklopaedie  der  Rechtswissenschaft,"  p.  603; 
Meyer- Anschiitz,  "Deutsches  Staatsrecht,"  pp.  571  ff.;  Georg  Meyer, 
"Deutsches  Verwaltungsrecht,"  p.  8. 


154        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

branch  of  the  government  to  the  extent  that  the  legis- 
lature has  not  otherwise  provided,  but  is  of  course 
effectually,  though  indirectly,  limited  by  the  legislative 
power  over  appropriations.  In  general  this  power  of 
organization  rests  with  the  king,  though  in  certain  cases  it 
has  been  delegated  to  ministers  or  lower  officers.  (6)  The 
power  to  issue  service  orders  rests  with  every  officer  in 
the  administrative  hierarchy,  who  has  an  official  subor- 
dinate to  him.  (c)  The  third  kind  includes  regulations 
for  public  institutions,  such  as  libraries,  museums,  rail- 
ways, universities,  concerning  the  details  of  their  manage- 
ment, conditions  of  user  by  the  public,  etc.,  which  are 
all  matters  for  the  competent  branch  of  internal  adminis- 
tration. 

These  internal  ordinances  of  the  administration  estab- 
lish no  rules  of  law  and  create  or  destroy  no  legal  rights. 
Hence,  as  has  been  seen,  they  need  not  be  enacted  by  the 
legislature,  but  may  be  issued  by  any  competent  ad- 
ministrative body  to  a  subordinate  body  and  are  binding 
upon  the  same  upon  communication,  without  any  other 
publication  being  requisite  to  their  validity. 
f  Of  a  fundamentally  different  character  are  those  enact- 
ments of  the  administration  which  do  establish  rules  of 
law  and  affect  the  liberty  and  property  of  the  individual 
(Rechtsverordnungen).  Prior  to  the  establishment  of 
the  constitutional  state  (1850)  there  was  no  legal  differ- 
ence between  the  two  kinds  of  enactments.  The  mon- 


LEGAL  EFFECT   OF  ADMINISTRATIVE  ACTION        155 

arch  had  the  power  to  issue  all  orders  for  the  government 
of  the  state,  whether  these  were  unimportant  directions 
to  a  subordinate  official  or  general  enactments  regulating 
the  legal  relations  of  individuals  to  each  other  and  to 
the  state.  But  with  the  constitution  and  its  separation 
of  powers,  the  fundamental  principle  was  established 
that  laws  which  interfere  with  the  liberty  and  property 
of  the  individual  could  no  longer  be  enacted  by  the  execu- 
tive alone,  but  only  by  a  legislature  in  which  representa- 
tives of  the  people  appeared  as  a  coordinate  lawmaking 
factor  with  the  ruler. 

By  this  significant  change,  there  was  introduced  the 
basic  principle  of  " lawful  administration"  or  adminis- 
tration within  the  limits  of  the  law,  which  determines 
not  only  that  no  administrative  act  could  conflict  with 
an  act  of  the  legislature,  but  also  that  any  interference 
by  the  administration  in  the  liberty  and  property  of  the 
individual  could  only  be  lawful  on  the  basis  of  legislative 
authorization.1  Consequently,  the  power  of  the  adminis- 

1  Much  confusion  has  arisen  from  the  various  uses  of  the  term  "law" 
(Gesetz).  Prior  to  the  adoption  of  the  constitution,  the  term  "law" 
meant  a  legal  norm,  that  is,  a  declaration  of  will  which  limited  and  de- 
termined the  legal  relations  of  the  individuals  subject  to  that  will.  This  is 
the  use  of  the  term  "law"  in  its  material  sense.  With  the  constitution 
and  its  separation  of  powers  came,  however,  a  new  use  of  the  term.  "  Law  " 
came  to  designate  also  every  act  of  the  legislature,  whatever  its  nature, 
and  this  is  the  meaning  of  the  term  in  its  formal  sense.  Every  act  of 
the  legislature,  therefore,  whether  the  establishment  of  a  legal  norm, 
or  whether  an  act  executive  or  judicial  in  its  nature,  is  a  "law"  in  this 


156        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

tration  to  pass  enactments  with  such  effect  is  limited  by 
the  necessity  of  resting  on  a  grant  by  the  legislature  in 
that  regard.  Such  grants  have,  however,  been  given  in 
very  large  measure,  sometimes  as  special  grants  for  par- 
ticular purposes,  sometimes  as  general  grants  for  wide 
purposes. 

There  are  three  chief  classes  of  these  acts  of  the  ad- 
ministration, affecting  individual  liberty  and  property, 
(a)  those  whch  are  issued  in  place  of  legislative  enact- 
ments (Notverordnungen),  (b)  those  issued  to  carry  out 
legislative  enactments  (Ausfiihrungsverordnungen)  and 
(c)  those  issued  to  supplement  legislative  enactments 
(Erganzungsverordnungen) . 

The  first  of  these  classes,  the  so-called  emergency  or- 
dinances (Notverordnungen),  are  of  relatively  slight  im- 
portance because  rarely  issued.  They  are  authorized 
by  Art.  63  of  the  Prussian  constitution,  which  pro- 
vides: "Only  in  case  the  maintenance  of  public  safety 
or  the  relief  of  an  extraordinary  state  of  distress  urgently 
require  it,  may  ordinances,  consonant  with  the  constitu- 
tion, be  passed  with  the  force  of  laws  under  the  re- 

fonnal  sense.  On  the  other  hand,  legal  norms  if  established  by  other 
organs  than  the  legislature  are  not  "laws"  in  this  sense.  The  two  terms 
are  therefore  not  coextensive  and  it  is  necessary  to  indicate  in  which 
sense  the  term  is  employed.  As  the  more  usual  reference  in  this  connec- 
tion is  to  an  act  of  the  legislature,  the  term  "law"  will  be  used  in  this  its 
formal  sense,  unless  otherwise  indicated.  See  Anschiitz,  in  Holtzendorff  s 
"Encyklopaedie,"  p.  592. 


LEGAL   EFFECT  OF  ADMINISTRATIVE  ACTION        157 

sponsibility  of  the  joint  ministry  of  state,  provided  the 
legislature  is  not  in  session.  Such  ordinances  must, 
however,  immediately  be  submitted  to  the  chambers  at 
their  next  session  for  ratification.  These  ordinances  are 
issuable  by  the  king  and  must  be  countersigned  by  all 
his  ministers."  It  is  his  discretion  and  theirs,  therefore, 
that  determines,  provided  of  course  the  legislature  is 
not  in  session,  the  necessity  of  these  extraordinary 
measures.  Any  and  all  measures  that  otherwise  fall 
within  the  powers  of  the  legislature  may  be  enacted 
in  such  executive  ordinances,  with  the  single  exception  of 
amendments  to  the  constitution.  Having  the  force  of 
legislative  acts,  these  ordinances  must  be  published  in 
the  same  manner  as  other  laws.1 

The  second  class  of  administrative  ordinances  which 
have  the  effect  as  a  rule  accorded  only  to  acts  of  the 
legislature,  are  the  so-called  executing  ordinances  (Aus- 
fiihrungsverordnungen).  These  are  issued  with  the  pur- 
pose of  putting  into  effect  an  act  of  the  legislature  and 
are  generally  in  the  nature  of  the  internal  ordinances, 
discussed  above,  and  in  that  case  need  no  special  legis- 
lative authorization.  But  they  may  also  be  directed 
to  the  public  and  affect  rights  of  liberty  or  property, 
in  which  case,  as  has  been  seen,  they  must  be  based  on  a 
legislative  or  constitutional  grant  of  power.  This  grant 
is  contained  in  Art.  45  of  the  constitution,  which  charges 
1  Prussian  Constitution,  1850,  Art.  106. 


158         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

the  king  with  issuing  the  ordinances  necessary  to  the 
execution  of  the  legislative  acts. 

By  far  the  most  important  class  of  administrative 
ordinances  having  the  character  of  legal  norms  are  the 
supplementary  ordinances  (Erganzungsverordnungen). 
These,  too,  must  of  course  rest  on  legislative  warrant, 
and  are  not,  like  the  other  two  classes,  based  on  an 
express  provision  of  the  constitution.  But  the  power 
of  the  legislature  to  delegate  its  lawmaking  authority 
to  administrative  organs  is  undoubted1  and  this  has 
been  done  in  a  very  large  measure.  Such  power  cannot, 
however,  be  redelegated  without  legislative  permission, 
hence  the  law  must  designate  not  only  to  what  extent 
but  also  by  what  authorities  this  ordinance  power  is  to 
be  exercised.  A  special  grant  of  power  for  each  ordinance 
is  not  necessary,  for  the  legislature  may  designate  a 
general  class  of  measures  that  may  be  adopted  by  ad- 
ministrative ordinance.  This  has  been  done  in  Prussia 
for  the  very  important  class  of  administrative  enactments 
known  as  police  ordinances  (Polizeiverordnungen).2 

"Police  ordinances"  (Polizeiverordnungen)  in  the  sense 
of  Prussian  administrative  law  are  general  police  meas- 
ures of  the  authorities  clothed  with  the  ordinance  power, 
violations  of  which  are  threatened  with  penalties.  In 

*Cf.  Jellinek,  "Gesetz  und  Verordnung,"  p.  333;  Laband,  "Staats- 
recht,"  p.  83;  Rosin,  "  Polizeiverordnungsrecht  in  Preussen,"  p.  191. 

2 Of  special  value  on  this  subject  is  the  work  of  Rosin,  "Das  Polizei- 
verordnungsrecht in  Preussen,"  Ed.  n,  1895. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION        159 

the  absolute  Prussian  state,  this  police  ordinance  power 
was  a  royal  prerogative1  exercisable  by  the  king  alone 
or  by  authorities  clothed  by  him  with  that  power.2 
But  a  general  law  passed  after  the  adoption  of  the  con- 
stitution regulated  the  whole  subject  of  police  ordinances 
anew.  By  this  law3  which  determined  the  competent 
authorities,  the  scope  of  their  jurisdiction  and  the  maxi- 
mum imposable  penalties,  the  police  ordinance  power  was 
largely  transferred  from  the  central  to  the  local  authori- 
ties. The  law  was  extended,  with  slight  alterations,  to 
the  new  provinces  in  i86y.4  Supplementary  provisions, 
in  effect  for  the  whole  of  Prussia,  were  enacted  in  the  law 
of  July  30,  1883,  concerning  the  general  state  adminis- 
tration, and  these  three  acts,  together  with  the  respective 
provisions  of  the  circle,  commune  and  city  acts,  regulate 
the  police  ordinance  power  in  Prussia  to-day. 

As  the  fundamental  principle  of  the  legislation  be- 
ginning in  1850  relative  to  the  police  ordinance  power 
was  decentralization,  the  local  police  authorities  were 
given  the  widest  possible  powers  in  this  respect.  After 
a  comprehensive,  though  not  exhaustive,  enumeration  of 
matters  which  are  the  subject  of  local  police  ordinances, 
including  protection  of  person  and  property,  freedom, 
safety  and  order  of  traffic  on  public  ways,  markets  and 

1  Allgemeines  Landrecht,  II,  13,  §  6. 

2  Regierungsinstruktion,  Oct.  23,  1817  (G.  S.  1817,  p.  248,  §  n),  S.  S. 
p.  137.  3  Law  of  March  n,  1850  (G.  S.  1850,  p.  265),  S.  S.  p.  283. 

4  Ordinance  of  Sept.  20,  1867  (G.  S.  1867,  p.  1529),  S.  S.  p.  291. 


l6o        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

sale  of  victuals,  public  meetings,  surveillance  of  strangers, 
public  taverns,  protection  to  life  and  health,  building 
regulations  and  control  of  extrahazardous  undertakings, 
protection  of  fields,  meadows,  woods,  etc.,  the  section 
concludes,  "and  all  else  which  must  be  regulated  through 
the  police  power  (polizeilich)  in  the  interest  of  the  com- 
munes and  their  members."  *  * 

By  this  last  blanket  clause,  the  police  ordinance  power 
of  these  authorities  has  been  made  coextensive  with  the 
police  power  itself,  as  defined  in  the  general  code  of 
I7942  and  adopted  by  the  supreme  administrative 
court  as  declaring  the  existing  law.3  The  police  ordi- 
nances must  in  every  case  be  concurred  in  by  state  or 
local  administrative  bodies  and  may  be  nullified  by  the 
competent  minister,  or  by  the  district  president  with  the 
concurrence  of  the  district  committee.  The  maximum 
penalty  imposable  by  the  rural  local  police  authorities 
for  violations  of  their  ordinances  is  nine  marks,4  which 
can  be  raised  with  the  consent  of  the  district  president 
to  thirty  marks,  which  is  the  maximum  penalty  im- 
posable for  the  violation  of  a  city  ordinance.5 

1  Law  of  March  u,  1850  (G.  S.  1850,  p.  265). 

2  Allgemeines  Landrecht,  1794,  Title  17,  Part  II,  §  10.     "It  is  the 
function  of  the  police  to  adopt  the  necessary  measures  for  the  maintenance 
of  the  public  quiet,  safety  and  order  and  for  the  aversion  of  dangers 
threatening  the  public  or  its  individual  members." 

3  Decisions  of  the  Sup.  Admin.  Ct.  9,  p.  353  ff. 

«  Law  of  March  n,  1850,  §  5.        5L.  V.  G.  1883,  §  144;  S.  S.  p.  160. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION        l6l 

The  next  highest  authority  with  the  power  to  issue 
police  ordinances  is  the  circle  director,  who  may  pass 
ordinances  for  the  entire  circle  or  for  several  precincts 
within  the  same,  with  concurrence  of  the  circle  com- 
mittee, and  attach  penalties  for  their  violation  up  to 
thirty  marks.1 

Above  the  circle  director  stands  as  police  authority  the 
district  president  for  his  district  or  two  or  more  circles 
within  it,  and  above  him  in  turn  the  province  president 
for  his  province  or  several  districts  thereof,  with  power 
to  issue  ordinances  and  attach  a  penalty  up  to  sixty 
marks  for  their  violation.2  In  the  case  of  ordinances 
issued  by  the  province  president,  the  concurrence  of 
the  province  council  is  necessary;  in  the  case  of  those 
issued  by  the  district  president,  the  district  committee 
must  concur,  except  that  in  both  cases  emergency 
measures  may  be  passed,  valid  for  three  months,  without 
such  concurrence.3 

Finally  the  ministers  also  may  issue  police  ordinances. 
But  they  have  received  no  general  power  like  that  of 
the  subordinate  authorities.  Express  authorization  by 
law  is  necessary  in  each  case,  for  the  law  of  1883  gave 
only  a  limited  ordinance  power  to  the  minister  of  public 
works,  as  regards  railway  regulations ;  and  to  the  minister 
of  trade  and  industry,  as  regards  navigation  and  harbor 
regulations,  with  the  power  to  attach  a  maximum  penalty 
1  Ibid.  §  142.  2  L.  V.  G.  §  137.  3  Ibid.  §  139. 

M 


l62         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

of  one  hundred  marks.  The  same  is  true  of  ordinances 
passed  in  execution  of  the  provisions  of  the  imperial 
criminal  code  as  regards  the  preparation  of  poisons  and 
explosives.1  The  ministers  of  course  exercise  an  impor- 
tant additional  influence  on  the  ordinance  making  power 
through  their  authority  to  direct  their  subordinates 
to  issue  desired  ordinances,  but  such  ordinances  must,  as 
has  been  seen,  in  every  case  be  concurred  in  by  another 
body,  composed  in  part,  at  least,  of  representatives  of 
the  people  in  each  territorial  division. 

Police  ordinances  are  enacted  in  a  manner  analogous 
to  the  passage  of  legislative  enactments,  and  their  validity 
is  dependent  upon  the  observance  of  the  forms  required 
by  law,  especially  as  regards  proper  publication.  Their 
legality  may  be  questioned  not  only  by  the  supreme 
administrative  authorities,  either  of  their  own  initiative  or 
upon  protest  or  complaint,  but  also  by  the  regular  courts 
in  a  collateral  proceeding  involving  the  validity  of  a  given 
ordinance,  ordinarily  when  an  individual  is  to  be  tried  on 
a  charge  of  violating  an  ordinance. 

Besides  this  large  class  of  ordinances,  which,  though 
dependent  on  the  concurrence  of  organs  of  local  self- 
administration,  are  in  legal  effect  acts  of  the  organs  of 
state  administration,  there  is  another  important  class  of 
enactments  which  fall  within  the  ordinance  power  of  the 
local  administrative  organs.  These  are  the  by-laws  or 
i  L.  V.  G.  §  136. 


LEGAL   EFFECT  OF  ADMINISTRATIVE  ACTION        163 

statutes  passed  by  the  bodies,  —  generally,  though  not 
always,  corporate  bodies,  —  in  the  exercise  of  their  powers 
of  self-administration.  Practically  all  bodies  for  local 
self-administration,  from  province  corporations  down  to 
the  communes,  are  clothed  with  the  power  of  passing 
such  ordinances.  This  ordinance  power  is  granted  partly 
by  general  laws  and  partly  by  special  laws  relating  to 
particular  matters,  but  the  principle  of  delegation  here 
also  is  that  of  general  authorization  to  issue  ordinances 
in  all  matters  of  local  concern.  Excluded,  of  course,  are 
the  above-considered  police  ordinances,  which,  as  has 
been  seen,  are  matters  of  state,  not  of  local,  concern. 
But  a  legislative  authorization  must  here  exist,  as  with  all 
administrative  enactments  having  the  character  of  legal 
norms  as  a  legal  basis  for  such  statutes.  Sometimes  also 
ordinance  powers  are  delegated  to  these  organs  of  local 
self-administration  by  imperial  as  well  as  by  state  law. 

Considering  now  the  legislative  activity  of  the  ad- 
ministration as  expressed  not  in  general  ordinances, 
out  in  special  orders,  we  note  that  there  is  here,  too,  the 
distinction  between  internal  or  service  orders  and  those 
directed  to  third  persons.  Among  the  latter,  the  most 
mportant  are  those  which  interfere  with  the  liberty  or 
property  of  the  individual,  by  imposing  a  restraint  or 
obligation  upon  him. 

There  is  a  conflict  of  opinion  as  to  the  basis  and  extent 
of  the  administrative  power  with  regard  to  these  orders 


164         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

when  legislative  authorization  is  lacking,  but  the  pre- 
vailing, and  it  would  seem  the  better  opinion,  and  the 
one  adopted  by  the  supreme  administrative  court  of 
Prussia,  is  to  the  effect  that  the  principle  of  " legal"  ad- 
ministration was  introduced  by  the  constitution  for  all 
liberty  or  property  affecting  acts  of  the  administration.1 
A  legislative  authorization  must  consequently  also  be 
found  to  establish  the  validity  of  "  police  orders,"  which 
are  in  effect  police  ordinances  directed  to  a  concrete 
case.  This  authorization  is  found  in  Prussia  in  the 
General  Code  of  1794,  as  regards  the  maintenance  of 
public  quiet,  safety  and  order  and  the  protection  against 
impending  dangers,2  and  for  other  purposes  of  public 
welfare  in  a  great  number  of  special  enactments.  Police 
orders  may  be  issued  in  the  form  of  commands  or  pro- 
hibitions. Their  propriety  may,  as  in  the  case  of  police 
ordinances,  be  examined  by  the  higher  administrative 
authorities  of  their  own  initiative,  or  upon  protest,  their 
legality  be  questioned  by  proceedings  in  the  adminis- 
trative courts  as  regulated  by  law.3  Such  an  order 
confers  no  vested  legal  rights,  for  the  authority  which 
issued  it  may  recall  it,  as  well  as  reissue  one  which  has 
been  recalled,  unless  it  was  recalled  in  consequence  of  a 

1  For  the  minority  view  and  a  list  of  references  to  the  representatives 
of  the  prevailing  view,  see  Meyer-Anschiitz,  "Deutsches  Staatsrecht," 
§  178  and  note  3. 

2  Allgemeines  Landrecht,  1794,  Title  17,  Part  II,  §  10. 
'L.V.  G.i883,  §§127-131. 


LEGAL  EFFECT  OF  ADMINISTRATIVE   ACTION        165 

decision  by  an  administrative  court.  On  the  other 
hand  an  individual  whose  protest  against  an  adminis- 
trative order  has  once  been  disallowed  may  reenter 
his  protest  upon  issuance  of  another  order  to  the  same 
effect.  But  failure  to  take  the  permitted  steps  to  ques- 
tion an  order  within  the  time  allowed  forecloses  the 
right  of  the  party  affected  to  attack  it.1 

The  converse  of  administrative  prohibitions  is  fur- 
nished in  administrative  permits  or  licenses,  by  which 
an  act  forbidden  by  general  law  is  permitted  in  particu- 
lar cases.  The  authority  to  issue  such  permits  or  licenses 
must  be  contained  in  the  law  which  establishes  the  pro- 
hibition, or  in  another  act  of  the  legislature,  unless 
the  prohibition  itself  is  established  by  the  administra- 
tion in  the  exercise  of  its  ordinance  powers.  In  either 
case,  the  action  of  the  licensing  authority,  even  though 
discretionary,  must  not  be  arbitrary,  although  no  legal 
right  to  the  issuance  of  a  license  accrues  to  an  individual, 
when  discretion  is  admitted.  Nor  does  a  licensee  obtain 
a  vested  right  to  the  continuance  of  the  permit  he  has 
obtained.  The  licensing  authority  may  revoke  the 
license  under  the  circumstances  provided  in  the  law  or 
if  the  public  interest  demands  it.  The  licensee  has 
obtained  merely  a  protection  in  the  exercise  of  his  permit 
as  against  the  public  authorities,  as  long  as  the  license 
remains  unrevoked.  Against  illegal  refusal  or  revoca- 
1  Georg  Meyer,  "Deutsches  Verwaltungsrecht,"  p.  87. 


1 66         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

tion  of  a  license,  the  party  aggrieved  may  seek  his  remedy 
in  the  administrative  courts.1 

Another  class  of  administrative  orders  is  characterized 
by  the  fact  that  they  do  create  vested  rights.  These 
are  known  as  acts  of  investiture  (Verleihung).  These 
may  either  directly  confer  rights  or  create  a  status.  So 
the  granting  of  rights  in  realty,  such  as  mining  and  water 
rights,  patents,  copyrights,  public  rights,  such  as  titles, 
orders  and  rank,  conferring  of  corporate  capacity,  etc., 
are  all  examples  of  the  first-mentioned  species  of  ad- 
ministrative acts.  To  the  second  kind  belong  solemniza- 
tion of  marriages,  legitimation  and  majorization  of  chil- 
dren, naturalization,  appointment  as  public  officer,  etc. 
Opposed  to  these  acts  of  investiture  are  the  corresponding 
acts  of  divestiture,  which  must,  of  course,  rest  on  warrant  of 
law.  Rights  once  created  can  in  general  be  destroyed  only 
on  grounds  of  public  interest  and  on  payment  of  compen- 
sation or  as  a  punishment  for  improper  use  of  the  rights. 
The  individual  concerned  may  only  in  certain  cases 
enforce  the  conferring  of  such  rights  or  status  through  the 
administrative  courts,  as  fixed  by  law ;  as,  for  instance, 
with  regard  to  citizenship,  state  and  local.  Once  in 
possession  of  such  a  right,  he  may  make  it  the  basis  of 
action  in  the  regular  courts  against  infringement  by  in- 
dividuals, and  in  case  of  illegal  deprivation  by  the  ad- 

1Georg  Meyer,  "Verwaltungsrecht,"  p.  87;  Fleiner,  §  24;  Otto 
Mayer  I,  §  21. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION        167 

ministration  he  must  look  sometimes  to  the  adminis- 
trative courts,  sometimes  to  the  regular  courts,  state  or 
national.  For  the  destruction  of  a  vested  right  of  pecu- 
niary value,  the  individual  is  entitled  to  compensation, 
for  which  he  can  sue  in  the  ordinary  courts.1 

All  these  latter  classes  of  administrative  acts  can  be 
grouped  under  the  deliberative  or  legislative  functions  of 
the  administration  only  in  so  far  as  the  law  accords  a 
certain  amount  of  discretion  to  the  authorities.  Other- 
wise they  become  mere  ministerial  acts  of  a  nature 
purely  executive,  and  would  therefore  fall  under  the 
next  main  division  of  administrative  action.  Such,  for 
instance,  are  the  large  variety  of  acts  of  confirmation 
and  authentication,  including  collection  of  statistics, 
attestation  by  notary's  seal,  etc.,  which  are  ministerial 
duties  imposed  by  law,  the  performance  of  which  may 
be  enforced  through  the  higher  administrative  offi- 
cials. 

It  is  not  enough  for  the  administration  to  legislate, 
that  is,  to  enact  general  ordinances  or  issue  special  or- 
ders, but  it  must  also  see  that  its  measures  are  enforced. 
For  the  infliction  of  penalties  incurred  through  violation 
of  the  general  ordinances,  the  regular  channels  of  criminal 
trial  before  the  ordinary  courts  are  to  be  used.  But  for 
violation  of  or  disobedience  to  administrative  special 
orders,  the  administration  is  endowed  with  a  coercive 
1  Georg  Meyer,  "Deutsches  Verwaltungsrecht,"  pp.  96-97. 


1 68        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

power,  known  as  administrative  execution.1  This  power 
of  administrative  execution  is  co-extensive  with  the  power 
to  issue  orders  and  is  inherent  in  the  latter. 

In  earlier  times,  there  was  no  distinction  between  ju- 
dicial execution  and  administrative  execution.  Gradu- 
ally, however,  judicial  execution  was  developed  as  a 
distinct  function,  though  for  a  long  period  the  same 
organs  were  used  also  for  administrative  execution. 
Not  until  the  beginning  of  the  nineteenth  century  was 
the  subject  of  administrative  execution  regulated  by 
special  provisions,  and  now  detailed  legislative  acts 
determine  the  exercise  of  this  power. 

There  are  two  general  kinds  of  administrative  execu- 
tion, one  of  which  is  directed  toward  compelling  a 
payment  (executio  ad  sohendum)  and  the  other  toward 
compelling  action  or  desistance  (executio  ad  faciendum  vel 
omittendum).  The  former,  intended  for  the  collection 
of  obligations  to  the  state  (taxes,  imposts,  duties,  ad- 
ministrative fines,  etc.),  is  regulated  in  great  detail  by 
an  ordinance  of  iSgg2  and  follows  very  closely  the  pro- 
visions of  the  Imperial  Code  of  Civil  Procedure  relating 
to  execution  through  the  regular  courts.  The  latter,  of 
more  importance  for  the  field  of  internal  administration, 

1  Georg  Meyer,  "Deutsches  Verwaltungsrecht,"  Ed.  in,  p.  67  ff. ; 
Fleiner,  "  Institutionen  des  deutschen  Verwaltungsrechts,"  §  13;  An- 
schiitz,  "Das  Recht  des  Verwaltungszwangs  in  Preussen"  (Verwaltungs- 
archiv  I,  p.  389). 

*  O.  Nov.  15,  1899  (G.  S.  1899,  p.  545),  S.  S.  p.  238. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION        1  69 


is  dealt  with  strictly  in  two  enactments,  one  of 
dealing  with  powers  of  execution  of  the  district  "govern- 
ments," and  the  other  of  i883,2  regulating  the  powers  of 
execution  of  the  lower  police  authorities. 

The  ordinance  of  1808  provides  that  the  district  govern- 
ments, in  the  exercise  of  their  powers  of  execution,  may, 
after  fruitless  demand  of  obedience  to  an  order,  have 
the  act  desired  performed  on  account  of  the  individual 
in  question  whenever  the  desired  performance  may  just 
as  well  be  furnished  by  a  third  person.  Similarly,  if 
delivery  of  articles  is  demanded,  but  not  of  specific 
articles  in  the  individual's  possession,  they  may  be 
bought  on  his  account.  In  either  case,  the  sums  ex- 
pended are  collectible  by  execution.  The  "government  " 
is,  moreover,  empowered  to  demand  the  carrying  out  of 
an  order  and  attach  and  enforce  a  penalty  up  to  three 
hundred  marks  or  four  weeks  in  jail,  for  failure  to  obey. 
As  extreme  measures,  execution  by  military  force  is  per- 
mitted after  all  other  measures  have  failed,  and  approval 
of  the  superior  authority  has  been  obtained. 

An  extension  of  this  power  of  execution  to  the  district 
presidents,  the  circle  director,  the  local  police  authorities 
and  the  commune  executives  is  contained  in  the  law  of 
1883.  The  coercive  power  is  to  be  used  on  the  following 
conditions.  Whenever  feasible,  the  administrative  au- 

1O.  Dec.  26,  1808,  as  contained  in  Instruction,  Oct.  23,  1817  (G.  S. 
1817,  p.  282,  §  48).  2  L.  V.  G.  1883,  §§  132-134. 


1 70        PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

thority  must  enforce  a  valid  order  by  having  the  desired 
act  performed  by  a  third  person  and  collecting  the  costs 
from  the  person  charged  with  the  performance  thereof 
by  executio  ad  solvendum.  In  case  the  act  demanded  is 
one  that  cannot  be  performed  as  well  by  a  third  person, 
or  if  it  is  apparent  that  the  individual  charged  with  the 
obligation  to  act  would  be  financially  unable  to  meet  the 
expenses  incurred  by  the  performance  of  the  act  by 
another,  or,  finally,  if  it  is  a  desistance  that  is  desired, 
the  authorities  are  empowered  to  threaten  and  impose 
fines  or  in  case  of  insolvency,  imprisonment.  A  written 
warning  must  precede  the  coercive  measures  in  either 
case.  The  maximum  fine  and  the  equivalent  imprison- 
ment are  fixed  bylaw  for  each  authority.  So  for  the  rural 
commune  executive,  the  maximum  penalty  imposable  is 
five  marks  or  one  day's  imprisonment ;  for  the  local  po- 
lice authorities  and  city  executives  within  rural  circles 
sixty  marks  or  one  week's  imprisonment;  for  the  circle 
directors,  police  authorities  and  city  executives  in  a  city 
circle,  one  hundred  and  fifty  marks  or  two  weeks'  im- 
prisonment ;  and  for  the  district  president,  three  hundred 
marks  or  four  weeks'  imprisonment. 

Imprisonment,  in  case  the  individual  is  unable  to  pay 
the  fine  imposed,  may  not  be  enforced  until  after  final 
termination  of  proceedings  instituted  to  test  the  validity 
of  the  measure  attacked,  or  until  expiration  of  the  time 
allowed  for  instituting  such  proceedings.  The  use  of 


LEGAL  EFFECT  OF   ADMINISTRATIVE  ACTION        171 

weapons  is  permitted  only  for  certain  named  classes  of 
officers.  Physical  force  is  to  be  used  only  as  a  last  resort 
in  compelling  obedience  to  an  order. 

The  individual  threatened  with  administrative  coercion 
is  entitled  to  attack  the  validity  of  the  coercive  threat 
on  the  same  grounds  and  in  the  same  way  that  he  could 
question  the  validity  of  the  original  order.  But  against 
the  imposition  or  execution  of  the  coercive  measure, 
protection  may  be  sought  only  through  formal  protest 
within  two  weeks  before  the  supervisory  authority. 

Not  only  may  the  administrative  authorities  approve 
or  disapprove,  by  virtue  of  their  supervisory  powers, 
the  acts  of  the  authorities  subordinate  to  them,  but 
they  may  also  consider  the  propriety  and  validity  of 
such  acts  upon  demand  of  individuals  claiming  to  be 
injured  by  these  acts.  Here,  then,  the  administration 
exercises  its  third  class  of  functions;  namely,  that  of 
adjudication. 

One  must  distinguish  between  two  forms  of  the 
exercise  of  this  judicial  power,  one  in  which  a  higher  ad- 
ministrative authority  considers  the  claims  of  an  individ- 
ual in  respect  to  an  act  of  the  administration  in  an 
informal  proceeding  not  strictly  governed  by  rules  of 
procedure  other  than  those  for  administrative  action  in 
general  (Beschlussverfahren),  and  the  other  in  which 
the  proceeding  is  before  a  regular  administrative  court 
and  is  carried  on  much  like  a  suit  before  an  ordinary 


172         PRINCIPLES   OF   PRUSSIAN  ADMINISTRATION 

court  (Verwaltungsstreitverfahren).  The  question  when 
the  one  and  when  the  other  of  these  forms  of  procedure 
is  available  to  the  individual  aggrieved  is  determined 
by  no  general  rule,  but  by  a  variety  of  legislative  pro- 
visions. However,  in  general,  it  can  be  said  that  while 
the  first  form  of  proceeding  is  adapted  for  the  questioning 
of  the  expediency  of  administrative  measures,  as  well  as 
their  legality,  the  second  form  is  available  to  question 
their  legality  only. 

Administrative  review  (Beschlussverfahren)  is  in  gen- 
eral a  function  of  the  collegial  supervisory  authorities  of 
state  administration  in  which  the  lay  element  is  repre- 
sented. These  are  the  circle  or  the  city  committee  in 
the  first  instance,  and  the  district  committee  and  the 
province  council.  Each  of  these  authorities  has  terri- 
torial jurisdiction  over  the  matters  assigned  to  it  by  law 
in  the  administrative  subdivision  in  which  it  is  active. 
In  actions  involving  reality,  the  authority  of  the  division 
where  it  is  located  has  jurisdiction ;  in  all  other  cases,  it 
rests  with  the  authority  of  the  division  where  the  person 
concerned  has  his  domicile.1 

The  procedure  in  the  exercise  of  the  function  of  ad- 
ministrative review  is  determined  largely  in  a  ministerial 
regulation  of  i884,2  s°  ^ar  as  n°t  regulated  in  the  law  of 

1  The  jurisdiction  of  these  reviewing  bodies  rests  on  a  great  number  of 
enactments  the  most  comprehensive  of  which  is  the  law  of  Aug.  i, 
1883  (G.  S.  1883,  p.  237),  S.  S.  p.  194. 

2  Regulation  of  Feb.  28, 1884  (Minis.  Blatt,  1884,  p.  35  ff.). 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION        173 

1 883.*  Members  of  the  reviewing  body  (Beschlussbe- 
horde)  are  disqualified  for  interest  if  affected  by  the  mat- 
ter under  discussion,  either  themselves  or  through  near 
relatives,  or  if  they  have  stood  in  a  business  relation  to 
the  same.  In  exceptional  cases  the  chairman  (circle  di- 
rector, district  president  or  province  president)  may  act 
in  the  name  of  the  whole  body.  The  protesting  indi- 
vidual may,  if  such  a  decision  be  adverse,  petition  for 
a  decision  by  the  whole  body,  or  proceed  with  his  rem- 
edies as  though  the  decision  had  been  rendered  by  the 
whole  body. 

The  proceedings  of  the  reviewing  body  are  as  a  rule 
carried  on  on  the  basis  of  documentary  evidence.  Oral 
proceedings,  at  which  the  party  interested  is  to  be  heard, 
may,  however,  be  specially  required  by  law  or  may  be 
instituted  by  the  reviewing  body  itself.  If  oral  proceed- 
ings are  required,  the  same  rules  of  procedure  are  in 
force  as  for  the  judicial  proceedings  before  an  adminis- 
trative court.2  So  also  as  regards  the  rights  and  duties 
of  witnesses,  the  manner  of  getting  testimony,  etc.,  the 
same  rules  apply  as  in  the  case  for  the  administrative 
court  proceedings.  The  individual  may  within  two 
weeks  enter  a  protest  against  an  adverse  determination 
of  the  circle  or  city  committee,  before  the  district  com- 
mittee, unless  otherwise  specially  provided  by  law. 
In  the  same  way  protest  may  be  made  against  the  orig- 

L.  V.  G.  §§  50-60,  115-126.  8  Which  see  later,  p.  180  f. 


174        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

inal  determinations  of  the  district  committee  before 
the  province  council.  Reviewing  determinations  of  the 
district  committee  are,  like  those  of  the  province  council, 
final  unless  otherwise  specially  provided  by  law. 

The  protest  against  a  determination  is  to  be  entered 
with  the  authority  whose  determination  is  protested 
against.  It  is  then  submitted  to  the  reviewing  authority 
with  the  answer  of  the  opposing  party.  The  chairman 
of  the  authority  originally  issuing  a  determination  may 
himself  protest,  on  grounds  of  public  interest,  against 
such  determination.  Furthermore,  final  determinations 
of  the  bodies  (province  council,  district  committees,  etc.) 
may  be  attacked  by  the  chairmen  of  these  bodies  by 
complaint  before  the  supreme  administrative  court. 

This  brings  us  to  the  second  and  more  technically 
judicial  activity  of  the  administration  (Verwaltungs- 
streitverf ahren) .  This  judicial  jurisdiction  (Verwaltungs- 
/\  gerichtsbarkeit)  was  not  established  until  some  years 
\after  the  introduction  of  the  constitutional  system. 
After  it  had  become  apparent  that  ministerial  responsi- 
bility, as  established  by  the  constitution,  did  not  furnish 
an  adequate  check  on  the  administration,  but  that  a 
union  of  the  power  to  act  and  to  judge  the  validity  of 
such  acts  in  the  same  hands  was  no  less  dangerous  than 
a  union  of  the  legislative  and  executive  functions,  a  spe- 
cial judicial  machinery  was  established  to  bring  about 
this  separation. 


LEGAL  EFFECT  OF   ADMINISTRATIVE   ACTION        175 

This  machinery  was  not  part  of  the  regular  judicial 
system,  and  was  indeed  still  built  up  within  the  ad- 
ministrative organism,  but  it  was  regulated  by  laws 
very  similar  to  those  for  the  regular  courts  whereby  the 
independence  of  decisions  and  freedom  from  influence 
by  the  administrative  hierarchy  were  the  chief  aim. 
The  proposal  to  endow  the  regular  courts  with  juris- 
diction in  administrative  cases,  though  warmly  sup- 
ported, was  rejected,  partly  because  of  the  fact  that  the 
judges  of  those  courts  trained  in  private  law  would  not 
have  proper  acquaintance  with  the  principles  of  public 
law,  and  partly  because  they  had  not  the  necessary 
acquaintance  and  experience  in  practical  administration 
requisite  to  an  intelligent  comprehension  of  the  prob- 
lems involved.  Furthermore,  there  seemed  to  be  a  con- 
cession of  superiority  over  the  administration  involved 
in  making  the  ordinary  courts  judges  of  the  validity 
of  administrative  acts,  and  that  appeared  contrary  to 
the  principle  of  equality  and  independence  as  between 
the  judicial  and  executive  branches  of  government. 

The  system  of  special  administrative  courts  was 
therefore  adopted  and  was  first  introduced  in  the  reform 
legislation  of  1872.  The  circle  committees  were  organ- 
ized as  administrative  courts  and  over  them  appellate 
bodies.  In  1875  a  special  law  organized  a  system  of 
administrative  courts  comprising  the  circle  committees, 
district  administrative  courts  and  a  supreme  adminis- 


176         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

trative  court  for  the  whole  of  Prussia.  The  provisions 
of  that  law  with  regard  to  the  supreme  administrative 
court  are,  with  some  modifications,  still  in  force,  but 
the  separate  district  administrative  courts  were  re- 
placed by  the  district  committee  through  the  law  of 
1883.  It  is  seen,  therefore,  that  only  in  the  highest 
instance  (supreme  administrative  court)  is  there  an 
organic  separation  of  administration  and  adjudication. 
In  the  lower  instances  (district  committee  and  circle 
committee)  the  same  bodies  act  both  as  organs  of  active 
administration  and  as  courts.  A  certain  distinction  is, 
however,  created  by  the  procedural  requirements  which 
are  very  strict  for  the  latter  function.  The  desired 
independence  of  higher  official  influence  is  attained 
through  the  lay  element  on  the  committee.1 

Decisions  of  the  administrative  courts  when  final  are 
law  in  the  sense  that  their  execution  cannot  be  stayed 
and  that  for  that  particular  case  the  question  is  deter- 
mined. But  in  how  far  such  a  decision  can  be  used 
to  found  a  plea  of  res  adjudicata  in  another  case  involv- 
ing the  same  parties  and  the  same  facts  is  a  disputed 
question,  the  answer  to  which  can  be  found  in  no  general 
rule,  but  varies  according  to  the  nature  of  the  particular 
case.2 

1  See  organization  of  the  district  and  circle  committees,  pp.  102  ff. 

2  See  Fleiner,  "  Institutionen  des  deutschen  Verwaltungsrechts,"  pp. 
224-227. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION        177 

The  jurisdiction  of  the  administrative  courts  as  re- 
gards subject-matter  is  determined  by  no  one  law,  but 
must  be  gathered  from  the  countless  enactments  deal- 
ing with  special  fields  of  administrative  activity.  The 
law  of  Aug.  i,  1883,*  contains  a  large  designation  of 
jurisdiction  and  the  law  of  July  30,  i883,2  regulates  the 
jurisdiction  of  the  administrative  courts  as  regards 
police  orders.  In  addition  to  state  laws,  there  are  also 
imperial  laws  affecting  the  jurisdiction  of  these  courts. 

Controversies  before  the  administrative  courts  fall 
into  two  general  groups,  those  instituted  for  the  pro- 
tection of  objective  law  and  those  for  the  protection  of 
subjective  rights.3  The  first  general  group  of  contro- 
versies involves  action  against  an  administrative  act 
on  the  general  ground  of  illegality.  This  occurs  not 
between  organs  of  state  administration,  which  are  sub- 
ject to  superior  organs  of  control,  but  between  organs  of 
state  and  of  local  administration.  So  the  circle  direc- 
tor, the  district  president  and  the  province  president 
may  bring  the  acts  of  the  circle  committee,  the  district 
I  committee  and  the  province  council  before  the  adminis- 
j  trative  courts  to  test  their  legality.4  Or  state  authorities 
may  suspend  acts  of  the  organs  of  local  administra- 

1  Zustand,  G.  (G.  S.  1883,  p.  237). 

2  L.  V.  G.  (G.  S.  1883,  p.  195),  §§  127-131. 

8  Georg  Meyer,  "Lehrbuch  des  deutschen  Verwaltungsrechts,"  §  13, 
pp.  52-61. 

4L.  G.  O.  1891,  §  6;  Kr.  O.  1872,  §  133. 

N 


178        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

tion  and  the  latter  then  complain  before  the  adminis- 
trative courts :  so  the  commune  executive  with  regard 
to  acts  of  the  council,  the  mayor  with  regard  to  acts  of 
the  city  council,  the  circle  director  with  regard  to  acts 
of  the  circle  organs  of  local  administration  and  the 
province  president  with  regard  to  the  province  organs 
of  local  administration.1  Or  complaints  may  be  lodged 
with  the  administrative  courts  by  the  qualified  members 
of  the  general  public  as  regards  the  legality  of  municipal 
elections.2 

The  second  group  of  controversies  are  those  instituted 
for  the  protection  of  individual  rights  and  interests. 
The  complainant  here  may  be  a  private  individual,  an 
officer  or  a  public  corporation.  A  private  individual 
may  demand  a  decision  as  to  his  public  status,  citizen- 
ship, state  and  local,  franchise  right,  eligibility  to  office, 
etc.  Or  he  may  demand  a  decision  compelling  an 
administrative  organ  to  act  or  to  refrain  from  acting 
in  his  regard.  So  the  whole  field  of  administrative 
orders  furnishes  the  subject-matter  of  proceedings  as 
to  their  legality  before  administrative  courts,  and  the 
individual  affected  may  demand  their  revocation.3  Or 
the  individual  may,  by  means  of  the  administrative 
courts,  compel  an  organ  to  issue  licenses,  documents, 

!L.  G.  0. 1891,  §  140;  Zust.  G.  1883,  §  15;  Kr.  0. 1872,  §  178;  Pr.  O. 
1875,  §  118.    2  L.  G.  0. 1891,  §  67 ;  St.  0. 1853,  §  27 ;  Pr.  0. 1875,  §  24. 
« L.  V.  G.  1883,  Zust.  G.  1883,  etc. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION        179 


etc.,  or  to  grant  support,  or  the  use  of  public  institu- 
tions so  far  as  the  law  accords  such  rights. 

If  an  officer,  the  complainant  may  in  certain  cases 
compel  the  recognition  of  his  official  status,  question  the 
validity  of  disciplinary  measures  employed  against  him 
and  enforce  pecuniary  claims  for  salary,  etc.,  by  means 
of  the  administrative  courts.1 

Public  corporations  may  invoke  the  administrative 
courts  to  determine  their  public  character  or  territorial 
limits  or  to  protect  other  public  and  private  rights.2 

Generally  speaking,  administrative  courts  can  take 
jurisdiction  over  cases  only  if  the  right  involved  arises 
out  of  the  failure  of  the  administration  to  perform  a 
concrete  duty  imposed  by  law.  Matters  of  discretion 
can  therefore  as  a  rule  raise  no  rights  which  the  judicial 
machinery  of  the  administration  is  meant  to  protect, 
unless  an  arbitrary  and  therefore  illegal  action  of  the 
administration  is  evident.  But  in  certain  cases  the  law 
gives  a  right  to  require  a  reasonable  and  expedient  and 
not  merely  lawful  exercise  of  administrative  power  which 
may  be  brought  before  the  administrative  courts,  in- 
stead of  being  left  merely  to  higher  administrative  de- 
cision, as  questions  of  expediency  in  general  are.  So 
the  petitioner  for  an  innkeeper's  license  may  demand 
decision  by  the  administrative  court  concerning  the 

1  Zust.  G.  1883,  §  70,  2 ;  L.  V.  G.  1883,  §§  14, 32,  etc. ;  Law  of  July  30, 
1899,  §  7-  »  Zust.  G.  1883,  §§  9,  21,  26. 


l8o        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

refusal  of  a  license  by  the  circle  committee,  although  the 
refusal  of  such  a  license  is  a  matter  for  the  discretion 
of  the  licensing  authority.1 

The  procedure  in  cases  before  the  administrative 
courts  is  regulated  in  great  detail  in  the  law  of  July  30, 
1883,  §§  50-114.  As  a  general  rule,  the  possibility  of 
proceedings  before  the  administrative  courts  precludes 
other  measures  of  redress,  but  various  exceptions  are 
established  by  law.  The  general  period  for  instituting 
proceedings  is  two  weeks  after  the  measure  complained 
of  has  been  issued,  and  unless  in  exceptional  cases  the 
right  to  proceedings  expires  with  that  period.  The 
institution  of  proceedings  regularly  suspends  the  meas- 
ure complained  of,  unless  in  the  opinion  of  the  issuing 
authority  public  interest  demands  its  immediate  execu- 
tion. The  territorial  jurisdiction  of  the  administrative 
courts,  like  that  of  the  administrative  reviewing  bodies, 
is  determined  in  real  actions  by  the  location  of  the  realty, 
in  personal  action  by  the  domicile  of  the  complainant. 
Decisions  of  the  administrative  courts  are  executed  in 
the  name  of  the  authority  which  acted  as  the  first 
instance. 

Disqualifications  for  interest  are  the  same  as  for  the 

regular  courts.     The  case  is  begun  by  submitting  a 

written  complaint  to  the  competent  court,  containing 

the  demand  of  the  complainant,  the  identity  of  the  de- 

!Zust.  G.  1883,  §  114. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION   l8l 

fendant,  the  subject-matter  of  the  controversy  and  the 
facts  on  which  the  demand  is  based.  If  the  petition  is 
clearly  ungrounded,  the  claim  may  be  disallowed  in  an 
award  (Bescheid)  stating  the  reasons.  If,  however,  the 
petition  appears  justified,  the  defendant  may  be  ordered 
to  act  in  accordance  with  the  prayer  of  the  complainant. 
Such  immediate  awards  must  state  that  the  parties  are 
entitled  within  two  weeks  to  demand  oral  proceedings 
or  to  appeal  directly  to  the  next  highest  instance.  Fail- 
ure to  do  either  within  the  given  period  endows  the 
award  with  the  character  of  a  final  decision. 

Instead  of  issuing  an  immediate  award,  the  court 
may  order  the  defendant  to  prepare  a  written  answer 
within  not  more  than  four  weeks,  together  with  all 
documentary  evidence.  If  neither  party  then  demands 
oral  proceedings,  the  court  may  issue  an  award  as  before, 
but  on  the  basis  of  the  evidence  submitted.  But  if 
either  party  requests  oral  proceedings  or  if  the  court 
deems  them  advisable,  the  parties  are  instructed  to 
appear.  The  same  is  done  in  cases  where  the  law  gives 
as  remedy  instead  of  the  complaint  the  right  to  demand 
oral  proceedings.  Third  persons  in  interest  may  be 
notified  to  appear  and  are  then  parties  to  the  case  and 
bound  by  its  decision. 

In  the  oral  proceedings,  the  parties  themselves  or 
their  counsel  are  to  be  heard  and  may  modify  their 
original  declarations  so  far  as  in  the  opinion  of  the 


182        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

court  the  opposing  party  is  not  prejudiced  or  the  pro- 
ceedings unduly  delayed.  They  have  the  right  to  intro- 
duce all  available  evidence  and  to  have  witnesses  heard 
on  their  behalf.  The  chairman  of  the  court  must  assist 
in  the  clear  presentation  of  all  relevant  facts,  by  inter- 
jecting questions  or  other  remarks.  The  proceedings 
are  open,  unless  public  welfare  or  morals  seem  to  demand 
the  exclusion  of  the  public.  A  special  agent  may  be 
appointed  by  the  district  president,  or  for  the  highest 
instance  by  the  competent  minister,  to  protect  the 
public  interests  affected.  In  general,  this  is  the  function 
of  the  authority  involved  in  the  case,  but  if  no  authority 
is  designated  by  law  as  defendant  in  a  given  case,  an 
agent  may  also  be  appointed  to  represent  the  public 
interests. 

The  court  itself  may  institute  investigations,  summon 
witnesses  and  experts  and  examine  them  under  oath 
and  otherwise  act  to  obtain  all  desirable  information. 
Its  punitive  powers  in  this  respect  are  the  same  as  those 
of  a  regular  court.  The  court  decides  on  the  basis  of 
all  known  facts,  but  binds  only  the  parties  to  the  case 
and  can  decree  no  more  than  was  demanded  in  the 
complaint.  The  decision  is  rendered  in  open  session 
and  is  delivered  in  writing  with  the  grounds  for  the 
same  to  the  parties  in  the  case. 

The  circle  committees  are  always  courts  of  first  in- 
stance. From  their  decisions,  except  when  declared 


LEGAL  EFFECT  OF   ADMINISTRATIVE  ACTION        183 

by  law  to  be  final,  the  complainant  may  appeal.  Fur- 
thermore, the  chairman  of  the  circle  committee  may 
on  grounds  of  public  interest  appeal  from  its  decisions, 
declaring  his  intention  to  do  so  at  the  time  of  announc- 
ing the  decision.  The  appellate  court  is  the  district 
committee.  The  district  committee  is,  moreover,  in 
certain  cases  a  court  of  first  instance.  From  its  decision 
in  such  cases  appeal  is  permitted  in  the  same  way  to 
the  supreme  administrative  court.  In  either  case,  if 
the  appeal  is  by  the  chairman  of  the  court  below,  a 
special  counsel  is  appointed  to  represent  the  public 
interests  on  account  of  which  the  appeal  was  entered. 

The  appeal  must  be  presented  with  the  grounds 
therefor  in  writing  to  the  court  appealed  from.  This 
must  be  done  within  a  period  of  two  weeks,  under  pain 
of  losing  the  right  to  appeal. 

In  the  appellate  court,  the  decision  can  be  reversed 
only  after  oral  proceedings.  It  proceeds  in  the  same 
way  as  the  court  of  first  instance  and  examines  de  now 
all  questions  of  law  and  fact.  The  decision  is  an- 
nounced by  the  court  whose  decision  was  appealed 
from. 

Decisions  of  the  district  committee  acting  as  appel- 
late court  may  be  taken  to  the  supreme  administrative 
court  for  revision,  unless  otherwise  provided  by  law. 
Here  again  the  chairman  of  the  court  below  may  demand 
revision  on  the  ground  of  public  interests.  Otherwise 


184        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

the  law  admits  only  two  grounds  of  revision.  If  it  is 
claimed  that  the  decision  below  rests  on  a  misapplica- 
tion or  non-application  of  the  law,  or  that  the  proceed- 
ing was  defective  in  a  material  degree,  there  is  ground 
for  revision.  The  petition  for  revision  must  set  forth 
the  error  of  law  or  procedure  complained  of.  The 
court  is  not  restricted  to  the  reasons  advanced  in  sup- 
port of  the  original  demands.  If  the  grounds  for  re- 
vision are  considered  adequate  and  the  whole  matter 
appears  ripe  for  decision,  the  highest  court  annuls  the 
decision  of  the  court  below  and  renders  a  new  decision, 
which  is  announced  by  the  court  of  first  instance.  If 
the  whole  matter  does  not  seem  ripe  for  decision,  the 
case  is  remanded  to  the  court  below  for  new  trial 
or  for  amendment  of  the  proceeding  in  the  defective 
particulars. 

The  right  of  motion  for  new  trial,  after  final  decision, 
is  accorded  under  the  same  conditions  as  the  analogous 
motions  in  the  civil  courts,1  and  is  passed  upon  by  the 
supreme  administrative  court,  which  remands  the  cases, 
if  the  motion  is  allowed,  to  the  competent  court  with 
instructions  as  to  the  principles  of  law  and  the  rules  of 
procedure  to  be  applied.  Objections  to  the  conduct 
of  proceedings  before  the  circle  and  district  committees 
are  considered  finally  settled  by  the  court  of  next  highest 

1  Zivilprozessordnung,  §§  578  ff.  Nichtigkeitsklage  and  Restitutions- 
klage. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION        185 

instance.  Court  costs  and  legal  costs  of  the  successful 
party  are,  as  a  general  rule,  borne  by  the  opposing 
party. 

The  supreme  administrative  court,  besides  being  a 
court  of  second  and  third  instance,  is  also  in  some  matters 
a  court  of  original  jurisdiction,  but  this  is  an  exceptional 
activity.  Such,  for  instance,  is  the  function  of  one 
senate  of  the  court  in  acting  as  disciplinary  court,1 
and  of  the  three  senates  for  tax  disputes.2 

The  administrative  courts  determine  the  question  of 
jurisdiction  of  their  own  motion  or  upon  a  plea  to 
the  jurisdiction.  If  the  question  involves  a  conflict  of 
jurisdiction  between  the  administrative  courts  and 
other  administrative  authorities  —  a  conflict  which  may 
be  raised  by  the  central  or  by  the  province  adminis- 
trative authorities  —  the  court  itself  first  passes  on  the 
question  of  jurisdiction.  If  it  then  maintains  its  juris- 
diction in  a  suit  over  which  an  administrative  authority 
also  claims  jurisdiction,  the  conflict  is  settled  by  the 
supreme  administrative  court  in  an  oral  contentious 
proceeding  on  the  basis  of  written  arguments  submitted 
by  conflicting  authorities.  Similarly  in  case  both  bod- 
ies disclaim  jurisdiction,  the  matter  is  settled  by  the  su- 
preme administrative  court. 

1  Law  of  May  8,  1889  (G.  S.  1889,  p.  107),  S.  S.  p.  418. 

2  Law  of  June  24,  1891  (G.  S.  1891,  p.  205,  §  37);  S.  S.  p.  1121;  In- 
come Tax  Law,  1906  (G.  S.  1906,  §§  49-54) ;  Supplementary  Tax  Law, 
1906  (G.  S.  1906,  p.  294,  §  37). 


186         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

If  a  conflict  of  jurisdiction  arises  between  the  ad- 
ministrative courts  and  the  regular  judicial  courts,  the 
question  is  more  complex.1  Such  conflicts  of  jurisdic- 
tion were  formerly  settled  by  the  king,  directly  or 
through  bodies  commissioned  thereto  by  him.  In  1847 
a  law  regulated  the  subject  in  Prussia  after  the  French 
model,  whereby  the  administration  was  given  the  power 
to  call  in  question  the  jurisdiction  of  the  regular  courts 
in  a  given  case,  the  conflict  of  jurisdiction  thereby  raised 
to  be  settled  by  a  special  court.  Then  came  the  im- 
perial law  for  the  constitution  of  the  judiciary,  which, 
while  establishing  the  general  rule  that  the  regular 
courts  were  the  judges  of  their  own  jurisdiction,  per- 
mitted the  single  states  to  establish  by  law  special 
authorities  for  the  decision  of  conflicts  of  jurisdiction. 
The  constitution  of  these  bodies  was,  however,  con- 
ditioned by  the  imperial  law  itself.2 

In  accordance  with  the  provisions  of  the  imperial  law, 

1  See  Meyer-Anschiitz,  "  Staatsrecht,"  §  181. 

2  Gerichtsverfassungsgesetz,  Jan.  27,  1877,  §  17,  provides  that  such 
courts  must  be  composed  as  follows  :  Members  are  to  be  appointed  for  the 
term  of  the  office  they  are  holding  at  the  time  of  appointment,  or  for 
life,  and  are  to  have  the  same  security  of  tenure  as  the  judges  of  the  im- 
perial court.     At  least  one-half  the  members  must  be  judges  of  the  im- 
perial court  or  the  superior  state  courts.    At  least  five  members  must 
participate  in  a  decision,  and  always  an  uneven  number.    The  pro- 
cedure is  to  be  regulated  by  law;   the  decision  to  be  rendered  in  open 
session  after  notice  to  the  parties.    If  a  regular  court  has  in  the  assump- 
tion of  jurisdiction  rendered  a  final  decision,  proceedings  may  not  be 
begun  before  the  special  court  to  determine  the  question  of  jurisdiction. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION    187 

a  court  was  established  in  Prussia  in  1879  f°r  the  deci- 
sion of  conflicts  of  jurisdiction.1  The  court  consists  of 
eleven  members,  six  of  whom  must  be  judges  of  the 
state  superior  court  at  Berlin,  the  others  qualified  for 
the  higher  administrative  or  judicial  service,  all  ap- 
pointed by  the  king  on  presentation  of  the  ministry  of 
state.  Seven  members  must  participate  in  a  decision. 
A  conflict  is  raised  by  the  contention  of  the  central  or 
province  administrative  authorities  that  in  a  given  case 
before  the  ordinary  courts,  the  courts  lack  jurisdiction. 
The  administrative  authority  must  declare  in  writing 
to  the  court  before  which  a  case  is  pending  that  the 
court  is  considered  to  be  without  jurisdiction.  Thereby 
the  court  proceeding  is  suspended  for  the  time  being,  and 
notice  must  be  given  the  parties.  If  a  court  has,  how- 
ever, rendered  a  final  decision  or  a  decision  subject  to 
revision  only,  the  conflict  cannot  be  raised  and  the 
administrative  authority  must  be  so  informed.  After 
notice  has  been  served  to  the  parties  of  the  raising  of 
the  conflict,  they  may,  within  a  month,  submit  their 

1  Ordinance  of  Aug.  i,  1879  (G.  S.  1879,  P-  573)-  The  organization 
of  the  court  was  determined  by  ordinance,  —  notwithstanding  Art.  96 
of  the  Prussian  constitution,  requiring  a  legislative  enactment,  —  on 
the  basis  of  §  17  of  the  introductory  measures  for  the  above  cited  law. 
This  measure  provided  that  in  states  in  which  such  a  special  court  al- 
ready existed,  but  needed  to  be  reconstituted,  in  view  of  the  new  provi- 
sions, such  reconstruction  might  occur  through  ordinance  instead  of 
law.  By  law  of  May  2 2/1902,  several  alterations  were  made  in  the  orig- 
inal ordinance  (G.  S.  1902,  p.  145). 


l88         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

opinions,  signed  by  counsel.  The  court  then  sends  its 
views  to  the  higher  court  and  this  in  turn  adds  its  views 
and  sends  all  papers  to  the  minister  of  justice.  He 
then  sends  them  to  the  special  court  for  conflicts  of 
jurisdiction.  The  procedure  here  is  both  public  and 
oral  and  the  decision  rendered  in  the  presence  of  the 
parties. 

In  case  both  the  regular  courts  and  the  adminis- 
trative courts  deny  jurisdiction  on  the  ground  of 
jurisdiction  belonging  to  the  other  bodies,  the  special 
court  of  jurisdiction  may  be  invoked  by  a  party  to  the 
case. 

In  either  case,  whether  both  administrative  courts 
and  ordinary  courts  claim  or  disclaim  jurisdiction,  the 
decision  of  the  special  court  of  jurisdiction  affirming  the 
jurisdiction  of  the  ordinary  courts  precludes  the  juris- 
diction of  the  administrative  courts.  If  the  imperial 
court  has  pronounced  against  the  jurisdiction  of  the 
ordinary  courts,  the  possibility  of  invoking  the  special 
court  is  not  open  to  the  parties.1  But  if  the  imperial 
court  has  denied  the  jurisdiction  of  the  ordinary  courts, 
the  administrative  courts  may  not  refuse  jurisdiction 
on  the  ground  that  it  rests  with  the  courts.  Moreover, 

1  This  provision  and  the  following,  by  which  the  imperial  court  was 
excepted  from  the  effect  of  decisions  by  the  special  court,  was  added  in  the 
amendments  of  1902  in  consequence  of  a  long  theoretical  and  practical 
difference  of  opinion  on  the  relation  of  such  decisions  to  the  imperial 
court.  See  Meyer-Anschiitz,  "Staatsrecht,"  p.  666,  note  13. 


LEGAL  EFFECT  OF  ADMINISTRATIVE  ACTION   189 

if  the  administrative  courts  have  already  denied  juris- 
diction on  that  ground  prior  to  the  decision  of  the 
imperial  court,  the  parties  to  the  case  may  require  a 
reversal  of  the  decision  of  the  administrative  court,  and 
proceedings  before  the  competent  authorities. 

There  remains  in  this  connection  the  consideration  of 
a  peculiar  function  of  the  supreme  administrative  court, 
known  as  the  "raising  of  the  conflict"  (Konfliktser- 
hebung)  not  to  be  confounded  with  the  above  considered 
" raising  of  the  conflict  of  jurisdiction"  (Kompetenz- 
konflikterhebung).  By  law  of  I854,1  as  modified  by 
the  imperial  law  of  iSyy,2  it  is  provided  that  in  case  a 
public  officer 3  is  proceeded  against  civilly  or  criminally 
for  acts  or  omissions  in  the  course  of  his  service,  the 
superior  province  or  the  central  authority  may  "  raise 
the  conflict,"  if  it  believes  that  he  has  acted  within 
the  requirements  of  his  office.  That  is,  the  determina- 
tion of  that  preliminary  question  is  withdrawn  from 
the  cognizance  of  the  ordinary  court  and  submitted  to 
the  supreme  administrative  court  for  determination. 
This  court  may  call  on  the  administrative  and  judicial 

1  Law  of  Feb.  13, 1854  (  G.  S.  1854,  p.  86),  S.  S.  p.  417. 

;*  Introd.  Law  to  the  G.  V.  G.  Jan.  27, 1877  (R.  G.  Bl.  1877,  p.  77,  §  17). 

3  The  law  extends  to  suits  against  all  officers,  mediate  and  immediate, 
civil  and  military,  active  or  retired.  But  judicial  officers  and  certain 
other  special  classes  are  excepted.  A  similar  arrangement  was  adopted 
for  soldiers,  by  providing  a  special  military  body  in  place  of  the  supreme 
administrative  court. 


IQO         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

authorities  for  assistance  in  determining  the  facts  of  the 
case. 

The  court  then  decides  according  to  its  findings  either 
that  the  case  may  proceed  in  the  ordinary  courts  or 
not.  The  former  finding  has  no  weight  in  the  subse- 
quent decision  of  the  case  in  the  ordinary  court. 


CHAPTER  V 

PROTECTION  OF  THE  INDIVIDUAL  AGAINST  ACTS  OF  THE 
ADMINISTRATION 

WE  have  seen  how  the  transition  from  the  absolute 
state  of  the  pre-constitutional  period  to  the  modern 
limited  form  of  monarchy  was  of  the  greatest  signifi- 
cance for  the  protection  of  the  individual  against  undue 
encroachments  by  the  executive  branch  of  the  govern- 
ment upon  his  rights  and  liberties.  We  have  now  to 
examine  more  systematically  the  means  which  the  law 
has  placed  at  the  disposal  of  the  individual  for  making 
the  theoretical  safeguards  a  practical  protection. 

The  general  right  of  every  individual  to  object  orally 
or  in  writing  to  any  act  of  the  public  authorities  can- 
not be  considered  as  a  subjective  legal  right,  for  that 
flows  from  his  liberty  of  action  as  an  individual,  not  from 
any  constitutional  or  legislative  grant.  No  more  is  the 
restraint  exercised  over  administrative  organs  by  the 
controlling  authorities  in  the  fulfilment  of  their  duty 
to  require  of  the  authorities  subordinate  to  them  a  law- 
ful use  of  power,  to  be  reckoned  as  a  subjective  right  of 
the  individual.  For  that  restraint  is  one  the  exercise 

191 


IQ2         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

or  non-exercise  of  which  is  independent  of  any  action 
by  the  individual. 

There  are,  however,  certain  measures  accorded  to  the 
individual  by  law,  by  which  he  can  of  his  own  right 
make  effective  his  claims  to  protection.  These  meas- 
ures comprise  the  formal  protest  (Beschwerde),  the 
complaint  before  administrative  courts  (Verwaltungs- 
klage),  and  actions  before  the  ordinary  courts.  The 
most  common  and  comprehensive  of  these  remedies  of 
the  individual  is  the  protest  or  administrative  appeal 
already  considered  under  the  forms  of  administrative 
action  above.1 

The  laws  give  every  individual  who  feels  himself 
injured  in  his  rights  or  interests  the  right  to  protest  to 
the  superior  authority  against  action  by  the  lower 
authorities.  The  conditions  and  forms  of  entering 
such  protests  are  determined  by  law.  So  the  protest 
must  be  entered  with  the  proper  authority  —  in  general 
the  supervising  authority  above  the  organ  against 
which  protest  is  raised  —  within  a  period  of  two  weeks. 

It  can  be  raised  only  by  the  individual  who  is  directly 
affected  by  the  action  complained  of,  in  his  private 
capacity.  The  protest  may  be  directed  towards  an 
error  of  fact  or  of  law,  an  abuse  of  discretion  or  a  mis- 
conception of  expediency.  As  a  general  rule,  the 
protest  is  excluded  as  a  remedy  if  the  complaint  before 

1  Fleiner,  p.  194,  §  14;  Otto  Mayer,  I,  §  12;  v.  Seydel,  I,  p.  560. 


PROTECTION   OF   THE   INDIVIDUAL  1 93 

the  administrative  courts  is  permitted  in  the  matter 
under  protest.1 

The  effect  of  the  protest  is  to  suspend  the  action 
complained  of,  unless  in  the  opinion  of  the  authority 
public  interest  forbids  its  suspension.  But  imprison- 
ment, when  open  to  the  administrative  authority  as  a 
coercive  measure,  may  not  be  resorted  to  in  execution 
of  an  act  against  which  protest  has  been  duly  entered.2 

The  higher  authority  examines  the  whole  subject- 
matter  of  the  protest  de  now;  and  if  it  finds  the  protest 
to  be  justified,  it  annuls  the  action  protested  against 
and  replaces  it  with  another  in  accordance  with  its 
findings.  If  the  authority  appealed  to  is  at  the  same 
time  the  superior  controlling  authority,  it  may  alter 
the  action  protested  against,  either  to  the  prejudice  of 
the  individual  or  to  his  advantage,  as  the  case  may 
demand.  But  if  it  is  a  special  authority  for  the  hearing 
of  protests  without  the  powers  of  a  supervising  organ, 
then  it  cannot  place  the  individual  in  a  worse  position 
than  before.3  If  the  action  protested  against  is  ap- 
proved by  the  higher  authority,  the  lower  authority 
is  still  free  to  alter  or  revoke  it.  But  if  the  higher 
authority  has  annulled  the  action  in  question  and  sub- 
stituted another  for  it,  then  this  is  alterable  by  the 
higher  authority  alone. 

The  most  important  application  of  the  right  of  pro- 

» L.  V.  G.  1883,  §  50.  2  Ibid.  §  S3-  3  Fleiner,  p.  199. 


IQ4         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

test  by  an  individual  occurs  in  respect  to  the  police 
orders.  Such  protests  must  be  entered  with  the  au- 
thority whose  action  is  protested  against.  So  orders 
of  the  local  police  authorities  in  rural  communes  and  in 
cities  of  less  than  ten  thousand  inhabitants  may  be 
protested  against  before  the  circle  director  with  appeal 
to  the  district  president.  Police  orders  of  the  authori- 
ties in  city  circles,  —  save  Berlin,  —  of  other  cities  with 
more  than  ten  thousand  inhabitants  and  of  the  circle 
director  are  subject  to  protest  before  the  district  presi- 
dent with  appeal  to  the  province  president.  These 
appellate  determinations  may  finally  be  brought  before 
the  supreme  administrative  court  by  complaint  if  they 
are  claimed  to  injure  the  complainant  in  his  legal  rights 
by  a  non-application  or  misapplication  of  the  law,  or 
to  rest  on  a  mistake  of  fact  on  the  part  of  the  authority 
issuing  the  order.1 

Finally,  police  orders  of  the  district  president  are 
subject  to  protest  within  two  weeks  before  the  province 
president.  The  determination  of  the  latter  may  be 
proceeded  against  before  the  supreme  administrative 
court  as  above.2 

The  other  cases  in  which  protests  are  admitted  are 
contained  in  all  the  various  enactments  dealing  with 
the  different  fields  of  administrative  activity,  and  can- 
not be  exhaustively  enumerated.  A  considerable  num- 
i  L.  V.  G.  1883,  §  127.  2  L.  V.  G.  §  130. 


PROTECTION   OF   THE   INDIVIDUAL  IQ5 

her  is  found  in  the  law  of  August,  1883,  dealing  with  poor 
relief,  schools,  savings  banks,  public  ways,  streams  and 
dikes,  fish  and  game,  industries,  building  regulations, 
expropriation,  citizenship,  etc.1 

The  next  remedy  open  to  the  individual  who  feels 
himself  injured  by  administrative  action  is  the  com- 
plaint before  the  administrative  courts  (Verwaltungs- 
klage).  The  composition  and  jurisdiction  of  the  ad- 
ministrative courts  has  been  considered  in  the  discus- 
sion of  the  judicial  functions  of  the  administration,  and 
it  need  here  be  emphasized  only  that  the  object  of  the 
whole  system,  as  far  as  the  individual  complainant  is 
concerned,  being  to  safeguard  his  rights  against  unlawful 
infringement  by  the  administration,  the  ordinary  rules 
of  judicial  procedure  calculated  to  insure  a  fair  and 
speedy  trial  have  been  applied. 

As  seen  above,  when  the  law  permits  the  administra- 
tive judicial  remedy,  the  administrative  protest  is  in 
general  excluded.  But  in  the  case  of  police  orders, 
whether  of  the  rural  local  authorities  or  smaller  cities, 
or  of  the  circle  director,  city  circles  or  larger  cities, 
complaint  may  be  instituted  before  the  circle  and  dis- 
trict committees  sitting  as  administrative  courts.  This 
is  admissible  as  an  alternative  remedy,  provided  it  is 
claimed  that  there  has  been  an  error  of  law  injuring  the 
legal  rights  of  the  complainant,  or  that  the  facts  did 
1  Zustandig.  Gesetz,  1883. 


196         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

not  exist  on  which  the  authority  could  have  based  its 
order.  The  instituting  of  the  one  kind  of  proceedings 
precludes  the  other,  and  in  case  of  doubt  the  proceeding 
will  be  regarded  as  administrative  protest.  So  also  if 
both  are  simultaneously  begun,  the  complaint  is  dis- 
continued. 

In  case,  therefore,  an  individual  feels  himself  preju- 
diced by  an  order  of  the  administration  which  he  con- 
siders unfair,  but  not  in  violation  of  any  legal  rights, 
he  can  use  only  the  method  of  formal  protest  to  the 
higher  authorities.  But  if  he  can  show  an  injury  to  a 
legal  right,  he  may  remove  the  matter  from  the  hands 
of  the  official  hierarchy  by  instituting  proceedings  before 
the  administrative  court.  In  the  one  case,  his  basis 
for  action  is  broader;  in  the  other,  his  procedural  pro- 
tection is  better. 

Direct  proceedings  to  question  the  validity  of  adminis- 
trative acts  and  to  have  them  annulled  or  amended  are 
therefore  to  be  instituted  before  organs  of  the  adminis- 
tration, either  the  active  administrative  bodies  or  the 
administrative  courts.  But  collaterally,  the  legality  of 
such  acts  may  be  brought  before  the  ordinary  courts, 
which,  though  not  competent  to  affect  the  act  as  such, 
may  furnish  protection  to  the  individual  concerned. 

We  have  seen  that  protection  may  be  afforded  by  the 
ordinary  courts  against  illegal  acts  of  the  administration, 
when  an  individual  appears  as  defendant  in  a  case  based 


PROTECTION  OF  THE   INDIVIDUAL  197 

on  such  administrative  act,  as  for  instance  in  the  im- 
portant class  of  cases  in  which  an  individual  is  tried 
for  the  violation  of  a  police  ordinance  before  the  regu- 
lar criminal  courts,  and  pleads  the  illegality  of  the  act. 
The  same  is  true  in  case  of  a  civil  action  against  an  indi- 
vidual for  damages,  resulting  from  his  failure  to  perform 
a  duty  imposed  upon  him  by  administrative  action. 

But  aside  from  this  passive  protection  accorded  to  an 
individual  as  defendant,  he  may  invoke  the  active  inter- 
vention of  the  ordinary  courts  by  appearing  as  plaintiff 
in  a  civil  action  for  damages  caused  by  illegal  acts  of  the 
administration.1  The  imperial  civil  code  provides  that 
an  officer  who  wilfully  or  negligently  violates  a  legal 
duty  owed  a  third  person  must  answer  in  damages  to 
such  person.2  Such  a  case  is  brought  before  the  ordinary 
courts,  which  must  determine  whether  violation  of  an 
official  duty  has  occurred  and  whether  that  duty  was 
owing  to  the  plaintiff.  There  is  no  liability  if  the  officer 
has  disobeyed  a  service  order  merely,  or  if  his  action  was 
only  inexpedient,  not  unlawful.  Actual  pecuniary  dam- 
ages alone  are  recoverable  except  in  extraordinary  cases. 

The  liability  of  the  officer  rests  on  his  violation  of  a 
duty,  whether  he  is  exercising  sovereign  governmental 
functions,  or  so-called  proprietary  functions;  that  is, 
whether  he  is  representing  the  state  or  other  public 

1  Georg  Meyer,  "  Staatsrecht,"  §  149;  Fleiner,  §  16  ;  Otto  Mayer,  I, 
§17.  2B.  G.  B.  §839. 


198         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

corporation  in  its  superior  character  as  government, 
or  in  its  coordinate  character  as  a  subject  of  the  private 
law.  He  may,  however,  not  be  solely  liable  or  not  liable 
at  all,  because  of  the  liability  of  superior  officers  or  or- 
gans. So  if  he  acts  in  execution  of  an  order  of  a  superior, 
that  superior  is  liable  in  his  place.  Furthermore,  by 
the  imperial  civil  code,  §§31  and  89,  the  state  or  public 
corporation  is  concurrently  liable  for  the  acts  of  its  rep- 
resentatives in  the  exercise  of  proprietary  functions.1 

But  the  liability  of  the  state  for  wrongful  governmental 
acts  of  its  officers  has  been  left  by  the  empire  to  the 
regulation  of  the  single  states.2  In  the  exercise  of  this 
power,  Prussia  has  passed  a  law  concerning  the  liability 

1  The  distinction  between  the  government  when  acting  in  the  exercise 
of  its  sovereign  power  (governmental  functions)  and  when  acting  as  a 
private  being  on  equal  terms  with  individuals  (proprietary  functions) 
is  of  wide-reaching  importance.  For  on  the  determination  of  that 
question  depends  the  further  question  whether  in  a  given  case  the  rules 
of  private  law  shall  be  applied  or  those  of  the  public  law,  which  often 
lead  to  wholly  different  results.  There  is  no  hard  and  fast  criterion  for 
the  decision,  and  in  many  cases  it  may  be  very  difficult  to  determine  in 
which  aspect  the  acts  of  the  government  are  to  be  viewed  ;  but  in  general 
when  the  government  acts  just  as  any  individual  might  act  who  is  not 
in  possession  of  the  superior  powers  of  the  government,  then  it  exercises 
proprietary  functions.  When,  however,  its  action  rests  on  its  sovereign 
power  as  government,  beyond  the  sphere  of  private  action,  then  it 
exercises  governmental  functions.  So  contracts  of  sale,  rental  or  em- 
ployment, borrowing  of  money,  etc.,  are  proprietary  acts.  On  the  other 
hand,  the  levying  and  collection  of  taxes,  the  exercise  of  the  police  power, 
etc.,  are  governmental  acts.  In  the  former  case,  the  individual  stands 
on  an  equal  footing  with  the  government ;  in  the  latter,  he  is  subject  to 
its  commanding  power.  2  E.  G.  to  the  B.  G.  B.  Art.  77. 


PROTECTION  OF   THE   INDIVIDUAL  199 

of  the  state  and  its  public  corporations  for  illegal  acts 
of  officers  in  the  exercise  of  governmental  powers.1  This 
law  provides  that  if  an  officer,  state  or  local,  is  guilty  of 
an  act  in  the  exercise  of  governmental  functions  which 
would  make  him  answerable  in  damages  under  the  im- 
perial law,  the  state  or  local  corporation  shall  be  answer- 
able in  his  stead.  Furthermore,  the  government  extends 
its  own  liability  to  those  cases  in  which  damage  has 
resulted  from  acts  of  the  officer  committed  involuntarily 
when  in  a  state  of  unconsciousness  or  mental  aberration, 
when  consequently  the  officer  himself  would  not  be  liable. 
On  the  other  hand,  it  repudiates  liability  for  acts  of  of- 
ficers who  are  remunerated  solely  by  fees  for  the  official 
acts  in  question. 

Though  such  suits  for  damages  are  instituted  in  the 
regular  courts,  the  administration  may  by  means  of  the 
proceeding  known  as  the  " raising  of  the  conflict"  (Kon- 
flikterhebung,  described,  above  p.  189)  submit  the  pre- 
liminary question  as  to  whether  the  officer  has  been 
guilty  of  an  excess  of  jurisdiction  or  an  omission  of  duty 
to  the  decision  of  the  supreme  administrative  court. 

Among  the  factors  of  protection  for  the  individual 
against  illegal  acts  of  the  administration  must  be  men- 
tioned the  criminal  liability  of  the  officers,  which,  though 
not  constituting  a  remedy  or  means  of  restitution  for  the 
individual  after  his  injury,  does  exercise  a  preventive 
1  Law  of  Aug.  i,  1909  (G.  S.  1909,  p.  691),  S.  S.  p.  374. 


200         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

influence  in  his  favor.1  Official  crimes  are  tried  in  the 
regular  proceedings  before  the  criminal  courts.  Official 
misdemeanors  are  tried  either  before  special  disciplinary 
courts  or  in  the  case  of  the  lesser  offences  by  the  superior 
officials. 

Of  a  wholly  different  nature  from  the  injury  an  indi- 
vidual may  suffer  from  unlawful  acts  of  the  administration, 
and  against  which  the  various  means  of  protection  con- 
sidered above  may  be  invoked,  are  damages  resulting 
from  the  lawful  acts  of  the  government  through  its 
administrative  organs.  So  the  individual  may  have 
his  property  rights  directly  transferred  to  another  for 
public  purposes  by  the  exercise  of  the  right  of  eminent 
domain.  Or  he  may  be  injured  in  his  property  rights 
as  a  result  of  laws  or  ordinances  making  those  rights 
useless,  as  by  the  prohibition  of  an  industry,  or  the  state 
monopolization  of  public  utility.  Or  further  he  may 
lose  his  property  by  acts  of  the  administration  in  the 
lawful  exercise  of  the  police  power.  In  none  of  these 
cases  has  the  individual  been  damaged  through  a 
tort,  and  in  no  case  has  he  an  inherent  right  to  com- 
pensation.2 A  right  to  compensation  exists,  and  exists 
in  large  measure  indeed,  but  only  on  the  basis  of  legis- 
lative provisions.  No  general  rule  as  to  compensation 

1  Georg  Meyer,  "  Staatsrecht, "  §  148. 

2  Fleiner,  §  17 ;  Anschiitz,  "  Verwaltungsarchiv,"  V,  p.  i ;  Otto  Mayer, 
H,  §§  53,  54. 


PROTECTION   OF   THE   INDIVIDUAL  2OI 

has  been  laid  down,  but  special  regulations  are  in  force 
|  for  the  various  cases  in  which  an  individual  may  be 
damaged  by  lawful  administrative  action. 

The  exercise  of  the  right  of  eminent  domain  by  the 
administration  has  been  minutely  regulated  in  Prussia 
with  a  view  to  adequate  protection  and  compensation 
for  the  individual  affected.  The  constitution  declares 
(Art.  9)  that  private  property  is  inviolable  and  can  be 
taken  away  only  in  the  interest  of  the  public  welfare 
upon  compensation  previously  paid,  as  the  laws  shall  de- 
termine. In  accordance  therewith,  there  was  passed  in 
1874  the  law  as  to  expropriation,1  subsequently  comple- 
mented and  amended  by  various  state  and  imperial 
enactments.  The  proceeding  can  be  begun  only  by 
the  minister.  The  determination  of  whether  expropria- 
tion is  to  be  undertaken,  and  to  what  extent,  is  reached 
by  the  district  committee,  against  whose  decision  ob- 
jections are  considered  in  a  public  hearing.  After  the 
plan  has  been  determined,  protest  being  allowed  to  the 
minister,  the  question  of  compensation  is  discussed  and 
determined  in  the  same  way  by  the  district  committee 
on  the  basis  of  estimates  made  by  sworn  experts.  The 
full  value  of  the  property  is  to  be  paid,  including  all 
resulting  damages  to  the  owner.  Against  the  decision 
of  the  committee  as  to  the  amount  of  compensation,  the 
owner  may  bring  suit  in  the  ordinary  courts  within  six 
JLaw  of  June  n,  1874  (G.  S.  1874,  p.  221),  S.  S.  p.  1464. 


202         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

months.  After  final  determination,  and  upon  payment 
or  guarantee  of  the  compensation,  the  district  com- 
mittee declares  the  title  to  have  passed. 

In  many  cases,  furthermore,  where  there  has  been  no 
expropriation,  but  a  damage  resulting  to  private  property 
through  governmental  acts  of  the  administration,  the 
courts  recognize  a  right  to  damages  either  on  the  basis 
of  a  legislative  enactment  or  even  sometimes  of  custom- 
ary right.1 

The  Prussian  general  code  of  1794  (Introduction, 
§  75)  declared  that  the  state  owes  compensation  to  him 
who  is  required  to  sacrifice  his  special  rights  and  privileges 
for  the  general  good,  and  on  the  basis  of  the  principle 
there  expressed  the  courts  have  founded  a  liability  in 
many  instances.  Other  acts  specifically  give  a  right 
to  compensation.  So  the  imperial  law  of  1900,  regarding 
contagious  diseases,  requires  compensation  to  be  paid  in 
certain  cases  when  an  individual,  by  reason  of  quarantine, 
has  lost  his  wages,  or  when  his  effects  have  been  injured 
or  destroyed  by  disinfection.2  Similar  provisions  appear 
in  the  imperial  law  concerning  contagious  diseases  of 
animals,  where  compensation  is  to  be  paid  for  animals 
killed  under  the  provisions  of  the  law.3  The  claim  to 

1Fleiner,  p.  251. 

2  Imp.  Law  of  June  30,  1900  (R.  G.  Bl.  1900,  p.  306) ;  S.  S.  p.  1492,  §§ 
28-34;  Law  of  Aug.  28, 1905  (G.  S.  1905,  p.  373),  S.  S.  p.  1502,  §§  14-24. 

3  Imp.  Law  of  June  26,  1909  (R.  G.  Bl.  1909,  p.  519),  S.  S.  p.  1514, 
§§  66-73. 


PROTECTION   OF   THE  INDIVIDUAL  203 


compensation  in  case  of  change  of  streets  rests  on  a 
customary  right,  though  considered  by  a  legal  fiction  to 
grow  out  of  an  implied  servitude. 

There  remains  to  be  mentioned,  under  the  head  of 
protection  to  the  individual  as  against  the  government, 
that  in  Prussia  the  state  in  relation  to  its  property 
rights  as  such,  distinct  from  any  governmental  powers, 
is  a  subject  of  private  law.  From  this  point  of  view,  the 
exchequer  (Fiskus)  is  bound  by  the  rules  of  private 
law  and  subject  to  the  jurisdiction  of  the  ordinary  courts. 
This  was  true  in  Prussia  before  the  Empire  and  was 
continued  by  the  imperial  legislation.  As  regards  his 
contract  rights,  therefore,  with  the  state  as  with  its 
public  corporations,  the  individual  stands  on  the  same 
footing  as  if  he  were  dealing  with  a  private  individual. 


CHAPTER  VI 
THE  LAW  OF  ADMINISTRATIVE  OFFICERS* 

IN  the  days  of  the  feudal  state  there  was  no  branch 
of  the  law  dealing  with  the  rights  and  duties  of  public 
officers,  for  the  evident  reason  that  there  were  no  public 
officers.  Services  were  rendered  for  the  feudal  lord 
on  the  basis  of  contract  agreements  regulating  the 
conditions  of  service.  With  the  development  of  the 
state  idea  from  the  patrimonial  basis  to  that  of  a  sover- 
eign unlimited  monarchy,  the  contract  relation  between 
the  ruler  and  his  agents  was  superseded  by  a  one-sided, 
unlimited  power  of  disposal.  £From  the  accession  of  the 
Great  Elector,  1640,  to  the  death  of  Frederick  the  Great, 
1786,  the  officers  in  the  service  of  the  state  were  as  un- 
protected against  the  acts  of  the  monarch  as  were  private 
individuals  against  executive  acts  in  general.^ 

The  efforts  of  the  Prussian  officialdom  to  fortify  their 
position  by  protective  legislation  led  to  the  codification 
in  the  General  Code  of  1794  of  the  rights  and  duties  of 

1  Meyer-Anschiitz,  §  142  ff. ;  Anschiitz,  in  Holtzendorff's  "  Encyklo- 
paedie,"  p.  587  ff. ;  Otto  Mayer,  II,  195  ff. ;  Laband,  I,  §44ff.;  Born- 
hak,  "  Preussisches  Staatsrecht,"  II,  §§  87-96. 

204 


THE   LAW   OF   ADMINISTRATIVE   OFFICERS  205 

public  officers.1  This  act,  by  which  the  tenure  of  officers 
was  no  longer  dependent  on  the  will  of  the  king  alone, 
was  the  earliest  comprehensive  enactment  regulating  the 
legal  relations  of  officers,  and  still  constitutes  the  basis 
of  the  law  to-day. 

The  constitution  guaranteed  the  independence  of 
judicial  officers  and  provided  for  a  general  law  for  the 
proper  protection  of  the  non-judicial  officers  against 
arbitrary  deprivation  of  office  or  income.  Such  a  law 
has,  however,  never  been  passed,  and  in  its  stead  separate 
enactments  regarding  various  phases  of  the  law  of  officers, 
such  as  misconduct  in  office,  transferment,  retirement, 
salary,  pensions,  etc.,  constitute,  together  with  the  pro- 
visions of  the  General  Code  mentioned  above,  the  body 
of  the  law  of  officers  in  Prussia.2 

Public  officers  are  persons  standing  in  a  continuing 
service  relation  to  the  state,  which  relation  is  voluntarily 
entered  into,  but  when  once  assumed,  constitutes  a  status 
governed  by  public  law.  This  characterization  dis- 
tinguishes the  officer,  on  the  one  hand,  from  employees 
of  the  state  whose  relation  rests  on  a  bilateral  contract 
similar  in  all  respects  to  a  contract  between  private  in- 
dividuals, and  on  the  other,  from  those  public  servants 
who  are  obliged  by  law  to  undertake  the  duties  imposed 

1  A.  L.  R.  1794,  Title  10,  Part  II. 

•See  Meyer- Anschiitz,  §  142,  note  5,  for  an  enumeration  of  the  sup- 
plementary laws. 


206         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

upon  them.  So  the  contractor  who  voluntarily  con- 
structs a  public  building  for  the  state  is  no  public  officer ; 
no  more  is  the  soldier  or  juryman  who  is  compelled  by 
law  to  serve.  The  real  nature  of  the  official  relation  is 
therefore  a  status  of  special  subordination  into  which  the 
individual  has  voluntarily  entered,  but  in  which  he  must 
meet  all  the  legal  requirements  of  his  position. 

It  is  no  essential  of  a  public  officer  that  he  actually 
clothe  an  office.  If  he  is  under  obligation  to  administer 
an  office,  if  given  him,  he  is  an  officer,  though  he  may 
for  a  longer  or  shorter  time  be  without  one.  Nor  is  the 
right  to  a  salary  an  essential  attribute  of  an  officer; 
there  are  numerous  classes  of  unsalaried  officers.  Nor  is 
the  length  of  service,  whether,  as  usually,  for  life,  or  for 
a  period  of  years,  determining  for  the  question  of  the 
existence  of  the  official  relation.  Nor  need  the  officer,  to 
be  such,  devote  his  entire  time  to  the  office,  though  that 
is  the  rule.  Furthermore,  it  makes  no  difference  what 
the  character  of  the  duty  performed  may  be,  whether 
governmental  or  proprietary,  intellectual  or  physical. 

Officers  are  divided  into  state  and  local,  or  immediate 
and  mediate  officers;  that  is,  those  who  receive  their 
office  from  the  state  organs  and  those  who  receive  it 
from  bodies  for  local  self-administration.  But  in  their 
legal  aspects,  these  officers  are  all  treated  in  the  same 
way,  and  so  there  is  no  need  for  distinct  consideration. 
Military  officers,  though  falling  within  the  definition  of 


THE   LAW   OF   ADMINISTRATIVE    OFFICERS  207 

the  term,  constitute  a  particular  class  for  themselves 
not  governed  by  the  general  law  of  officers.  Judicial 
officers  are  also  accorded  especial  treatment,  in  certain 
particulars,  though,  in  general,  subject  to  the  same 
provisions.  We  shall  consider  here,  therefore,  the  law  of 
administrative  officers  only ;  in  respect  to  the  creation 
of  the  relation,  its  rights  and  duties,  and  its  termina- 
tion. 

The  official  relation  is  created  as  a  rule  by  appointment. 
In  case  of  certain  local  officers,  election  has  been  pro- 
vided for  by  law.  Appointment  is  the  unilateral  act  by 
which  an  individual  is  endowed  with  the  character  of 
a  public  officer.  The  entire  appointing  power  belongs 
to  the  king,  unless  otherwise  provided  by  law.1  He 
may  exercise  this  power  himself  or  by  delegation  to 
ministers  or  subordinate  authorities.  There  is  no  gen- 
eral legal  obligation  to  accept  an  office,  but  in  the  case 
of  many  honorary  offices  of  local  self-administration, 
the  law  has  declared  such  an  obligation.  On  the  other 
hand,  there  is  no  legal  right  to  appointment,  even  after 
proving  eligibility. 

Public  offices  are  open  to  all  alike  who  meet  the  legal 
requirements.2  These  include:  (a)  the  full  possession 
of  the  honorary  rights  of  citizens.  Among  such  honorary 
rights  is  the  right  to  hold  a  public  office,  the  loss  of 
which,  according  to  the  imperial  criminal  code,  is  attached 

1  Const,  of  Prussia,  Arts.  45,  47.  2  Const,  of  Prussia,  Art.  4. 


208         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

to  a  penitentiary  sentence,  and  may  be  attached  to  a  jail 
sentence.1  (b)  Certain  qualifications,  as  evidenced  by 
training.  For  the  higher  officers,  there  is  required  a 
period  of  three  years'  study  in  a  uni verity  law  school, 
followed  by  the  first  state  examination.  This  is  followed 
by  at  least  nine  months'  active  service  with  a  regular 
court,  upon  completion  of  which  the  title  "Regierungs- 
referendar"  is  granted.  As  such,  the  candidate  serves 
three  or  three  and  a  quarter  years,  with  at  least  three 
different  administrative  authorities  and  is  then  required 
to  take  a  second  examination  in  law,  political  science 
and  economics.  Upon  passing  this  examination,  he  is 
given  the  title  "  Regierungsassessor "  by  the  ministers  of 
finance  and  of  the  interior.  He  is  then  qualified  for 
the  higher  administrative  service,  and  certain  positions 
open  only  to  such  Regierungsassessors.  So,  for  exam- 
ple, they  alone  are  eligible  to  be  members  of  the  district 
governments,  province  presidents  or  assistants  to  the 
district  presidents.  Furthermore,  the  non- judicial  mem- 
bers of  the  supreme  administrative  court  and  the  non- 
elective  members  of  the  district  committee  must  be 
chosen  from  among  persons  so  qualified.2  The  require- 
ments for  qualifications  to  judicial  offices  are  regulated  by 
imperial  law,3  in  a  similar  manner.  The  qualifications 

1  Strafgesetzbuch,  §§  31-37. 

2  Law  of  August  10,  1906  (G.  S.  1906,  p.  378),  S.  S.  p.  369. 
*  G.  V.  G.  1877,  §§  2-5,  149  (R-  G.  Bl.  1877,  p.  41)- 


THE   LAW   OF   ADMINISTRATIVE    OFFICERS  2OQ 

for  lawyers  and  intermediate  administrative  offices  are 
also  determined  by  law.1 

Citizenship  is  no  longer  a  legal  requirement  of  eligibility 
to  office.  As  regards  foreigners,  the  federal  law  of  June 
i,  1870,  provides  that  citizenship,  both  state  and  federal, 
is  conferred  by  the  appointment  to  an  office  in  a  state,2 
and  as  regards  German  citizens  of  other  states,  the 
imperial  constitution  forbids  their  being  treated  any 
differently  as  regards  eligibility  to  office  than  are  the 
citizens  of  the  given  state.3  The  giving  of  a  bond, 
now  required  of  a  very  few  officers  only,4  seems  to  be  a 
condition  precedent  to  a  valid  appointment,  but  not  so 
the  taking  of  the  oath  of  office. 

Though  a  writing  is  not  made  a  formal  condition  in  all 
cases  by  express  law,  the  written  form  of  appointment  is 
necessary.  With  regard  to  local  officers  it  is  specifically 
required 5  and  in  other  cases  also  a  warrant  or  commission 
is  the  means  of  appointment.  The  beginning  of  the 
official  relation  is,  therefore,  determined  by  the  de- 
livery of  the  writing.6  Usually  simultaneous  with  this 
is  the  investure  with  an  office.  But  as  has  been  seen, 
this  is  not  necessarily  the  case,  for  the  essence  of  the 

1  See  Hue  de  Grais,  §  63. 

2  Law  of  June  i,  1870  (R.  G.  Bl.  1870,  p.  355),  S.  S.  p.  72. 
'Imperial  Const.  1871,  Art.  3. 

4  Law  of  March  7,  1898  (G.  S.  1898,  p.  19),  S.  S.  p.  374. 
6  Law  of  July  30, 1899  (G.  S.  1899,  p.  141),  S.  S.  p.  1048. 
6  A.  L.  R.  Title  10,  Part  II,  §  84. 


210         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

official  relation  is  the  obligation  to  take  over  an  office, 
not  the  actual  exercise  of  it,  and  officers  without  an  office 
are  not  uncommon. 

The  general  rule  is  that  officers  are  appointed  for  life 
and  if  nothing  is  expressed,  that  is  understood.  But 
for  the  lowest  class  of  officers,  appointments  subject 
to  removal  are  allowed  and  in  the  case  of  elective 
local  officers,  a  definite  term  of  years  is  generally 
provided. 

As  soon  as  the  individual  has  become  an  officer,  he  is 
the  subject  of  new  rights  and  new  duties.  His  duties 
include,  first,  the  obligation  to  take  over  an  office  and  to 
administer  it  faithfully  according  to  the  law.1  He  must 
if  a  professional  officer,  give  his  entire  continuous  energy 
to  the  exercise  of  his  duties,  and  can  take  over  other 
activities  only  as  permitted  by  law.  He  may  lay  aside 
his  duties  only  upon  leave  of  absence  granted  or  when 
compelled  thereto  by  sickness  or  other  public  duties.2 
Election  to  the  Imperial  Reichstag  or  to  the  Prussian 
Landtag  of  itself  excuses  the  officer  for  the  time  being 
from  the  performance  of  his  regular  duties.3 

Secondly,  officers  are  under  obligation  to  keep  secret 
all  official  matters  not  intended  for  publication.  They 
may  not  be  compelled  to  testify  concerning  such  official 

1  Instr.  Oct.  23,  1817  (G.  S.  1817,  p.  248),  §  8.     S.  S.  p.  137. 

2  See  Hue  de  Grais,  §  65. 

8  Imperial  Const.  1871,  Art.  21 ;  Prussian  Const.  1850,  Art.  78. 


THE   LAW   OF   ADMINISTRATIVE    OFFICERS  211 


secrets  before  the  courts  without  consent  of  the  superior 
authority.1 

Thirdly,  the  officer  is  bound  to  obedience  towards  his 
superiors  in  office.  This  duty  is  clear  until  it  comes  into 
conflict  with  the  other  duty  of  every  officer  to  act  in 
accordance  with  the  constitution  and  the  laws.  What 
action  is  the  officer  to  take  in  case  the  order  of  his  superior 
is  or  appears  unlawful  and  to  what  extent  is  the  officer 
entitled  to  judge  of  that  fact?  The  laws  are  silent  on 
this  subject  and  among  the  authorities  there  is  the  great- 
est conflict  of  opinion.2  The  underlying  principle  would 
seem  to  be  that  of  absolute  obedience,  with  no  right  to 
examine  the  legality  of  the  orders,  save  in  exceptional 
cases.  These  cases  include  orders  issued  without  juris- 
diction by  the  superior  officer;  orders  imposing  duties 
not  included  within  the  jurisdiction  of  the  lower  of- 
ficer, orders  issued  without  the  formalities  required  by 
law  and  orders  violating  a  prohibition  or  criminal  law. 
In  such  cases,  the  officer  must  refuse  obedience  if  he 
is  convinced  that  the  order  is  in  any  of  the  above  ways 
illegal. 

Aside  from  the  limitations  imposed  on  the  officer  as 
regards  secondary  employments  or  offices,  he  may 
not  accept  decorations  or  presents  without  permis- 
sion. 

1  Ziv.  Prozess  Ordnung,  §§  376,  408,  483 ;  Straf  Prozess  Ordnung, 
§§  53>  76.  2  See  Meyer- Anschiitz,  pp.  513,  514  and  foot-notes. 


212         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

The  consequences  of  a  violation  of  duty  may  be 
threefold :  (a)  The  officer  may  be  mulcted  in  damages ; 
(b)  he  may  be  proceeded  against  by  disciplinary  proceed- 
ings ;  or  (c)  he  may  be  criminally  prosecuted. 

(a)  We  have  seen  that  the  imperial  and  the  state  laws 
regarding  liability  of  officers  in  damages  enlarged  the 
individual's  right  of  action  from  one  against  the  officer 
to  one  against  the  state  or   local  corporation.    In  the 
case  of  damages  arising  from  proprietary  acts  of  the 
officers,  the  liability  of  the  state  or  corporation  exists 
in  addition  to  that  of  the  officer.     In  the  case  of  the 
misuse  of  governmental  powers,  the  state  is  liable  in 
place  of  the  officer.    But  the  officer  himself  is  liable 
over  against  the  state  or  corporation  for  the  damages  so 
paid.1 

(b)  The  disciplinary  punishment  for   misconduct  in 
office  is  regulated  in  a  special  law  applicable  to  all  non- 
judicial  officers.    Misconduct  in  office  consists  in  violat- 
ing the  duties  of  the  office  or  in  conduct  in  or  out  of 
office  unworthy  of  the  dignity  of  the  calling.     Disci- 
plinary punishments  are  of  two  kinds,  removal  from 
office,   and   all   lesser  punishments    (Ordnungsstrafen). 
These  latter  include  warning,  reprimand,  fine  and,  in  case 
of  lower  officers,  arrest  for  not  more  than  eight  days. 
Removal  from  office,  which  includes  both  transfer  to 
another  office  and    dismissal   from   service    with  con- 

1  Law  of  Aug.  i,  1909  (G.  S.  1909,  p.  691),  S.  S.  p.  374. 


THE    LAW   OF   ADMINISTRATIVE    OFFICERS  213 

sequent  loss  of  title  and  right  to  a  pension,  can  only 
follow  after  a  formal  disciplinary  proceeding  before 
the  authorities  and  in  the  manner  required  in  the  law. 
For  the  trial  of  such  cases,  a  special  disciplinary  court 
exists  in  Berlin,  with  jurisdiction  over  officers  ap- 
pointed or  approved  by  the  king  or  his  ministers. 
For  other  officers,  the  appointing  provincial  authorities 
are  the  disciplinary  bodies.  Appeals  are  permitted  in 
either  case  to  the  ministry  of  state.  The  dismissal  of 
an  officer  appointed  or  approved  by  the  king  must  be 
confirmed  by  him.  In  the  case  of  officers  of  the  local 
public  corporations,  the  administrative  courts  are  the 
disciplinary  tribunals.1  An  officer  is  suspended  from 
office  if  a  preliminary  decision  of  a  criminal  or  disciplinary 
court  has  sentenced  him  to  dismissal  from  service.  He 
may  also  be  suspended  by  act  of  a  superior  authority 
if  a  criminal  or  disciplinary  proceeding  has  been  begun 
against  him. 

The  lesser  punishments  may  be  imposed  by  the  next 
superior  administrative  authority,  within  certain  limits, 
subject  to  appeal  to  the  higher  authorities. 

Disciplinary  proceedings  may  not  be  instituted  for 
the  criminal  punishment  of  acts  which  are  made  crimes 
in  office  by  the  imperial  code.  Nor  may  such  proceed- 
ings be  instituted  or  continued  after  a  trial,  whether 

»Zust.  Ges.  1883,  §§20,  94,  95;  Kr.  O.  1872,  §68;  L.  V.  G.  1883, 
§§  U,  32,  395  Prov.  O.  1875,  §  51,  etc. 


214         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

civil  or  criminal,  has  been  begun  involving  the  same 
facts. 

Aside  from  these  disciplinary  measures  for  offences, 
an  officer  may  be  subjected  to  disciplinary  acts  of  his 
superior  calculated  to  enforce  obedience  to  an  order. 
Furthermore,  he  is  subject  to  measures  "for  the  good 
of  the  service,"  which,  though  not  applied  as  punish- 
ments, operate  to  his  disadvantage.  Such  are  a  transfer 
in  office,  temporary  relief  from  duty  on  diminished  pay 
and  earlier  retirement  on  a  pension. 

(c)  With  regard  to  punishment  for  crimes,  officers  are 
liable  for  crimes  just  as  individuals  are.  But  in  addition 
to  the  general  provisions  as  to  punishment  for  crimes, 
there  are  special  clauses  in  the  imperial  criminal  code 
relating  to  crimes  of  officers.  Some  provide  a  heavier 
punishment  for  criminal  acts  if  committed  by  officers;1 
in  others,  acts  are  made  punishable  only  when  so  com- 
mitted.2 Such  trials  can  be  held  only  before  the  regular 
criminal  courts.  If  an  act  is  at  the  same  time  a  crime 
according  to  the  criminal  code  and  an  act  of  misconduct 
in  office,  according  to  the  disciplinary  law,  it  may  in 
certain  cases  be  punishable  in  both  proceedings.  This 
is  not  a  case  of  double  punishment,  for  the  same  act  con- 
stitutes two  separate  offences.  But  the  criminal  pro- 
ceeding always  has  priority,  and,  as  seen  above,  prevents 
the  commencement  or  continuation  of  a  disciplinary 

1  Strafgesetzbuch,  §§  128,  129,  155,  174.  *  Ibid.  §§  331-359. 


THE   LAW   OF   ADMINISTRATIVE    OFFICERS  215 

action.  If  the  criminal  trial  results  in  a  conviction 
and  sentence  which  involves  the  loss  of  office,  all  disci- 
plinary proceedings  are  excluded.1  An  acquittal  by  the 
criminal  court  does  not  prevent  a  subsequent  disciplinary 
proceeding  provided  the  act  constituted  in  itself  mis- 
conduct in  office. 

Just  as  officers  have  special  duties  and  obligations,  as 
a  result  of  their  status,  so  they  have  also  special  rights, 
privileges  and  protection.  In  the  interest  of  the  public 
service,  officers  are  granted  special  legal  protection. 
The  imperial  criminal  code  makes  it  punishable  by 
imprisonment  to  compel  an  officer  by  force  or  threat  to 
act  or  refrain  from  acting  in  his  official  capacity.  So 
also  the  interference  with  an  officer  in  the  execution  of 
his  duty  is  an  offence  punishable  by  imprisonment.2 

It  has  been  seen  that  the  officer  has  no  right  to  demand 
an  office.  But  if  he  is  an  officer  for  life  or  removable  only 
for  certain  causes,  then  he  has  a  right  to  the  status  of  an 
officer  and  to  his  prerogatives  as  regards  rank  and  remu- 
neration. The  honorary  rights  of  rank  and  title  are  con- 

1  According  to  the  imperial  criminal  code,  a  penitentiary  sentence 
involves  the  ineligibility  to  fill  a  public  office.  Furthermore,  in  case  of 
jail  sentence  for  three  months  or  more,  the  loss  of  the  honorary  rights 
of  citizens,  including  the  eligibility  to  public  office,  may  be  imposed 
for  a  period  of  one  to  ten  years,  as  part  of  the  sentence,  but  beginning 
after  serving  the  imprisonment.  The  Prussian  disciplinary  law  provides 
in  addition  that  a  sentence  to  imprisonment  for  more  than  a  year  or 
imposing  police  supervision  carries  with  it  eo  ipso  loss  of  office. 

2Straf.  G.  B.  §§  113,  114. 


2l6         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

f erred  with  the  commission.  Higher  officers  are  divided 
into  five  classes;  intermediate  officers,  into  four,  by 
a  large  number  of  royal  decrees  and  orders.1 

The  remuneration  of  officers  includes  salary,  special 
reimbursements  and  allowances.  The  officer  is  entitled 
to  enforce  his  claim  for  salary  through  the  ordinary 
courts.2  In  the  interests  of  the  officer  and  of  the  service, 
limitations  are  imposed  on  his  freedom  of  mortgaging  or 
assigning  the  salary.3  In  addition  to  cash  salary, 
payable  quarterly  in  advance,  there  are  official  quarters 
or  allowances  for  rent.  The  officer  is  entitled  to  reim- 
bursement of  money  expended  in  official  activity.  The 
financial  rights  of  an  officer  include  also  his  claim  to  a 
pension  as  provided  by  law.4  Furthermore,  his  survivors 
are  entitled  to  allowances  which  may  be  claimed  in  the 
ordinary  courts  also.5 

The  official  relation  may  terminate  in  one  of  several 
ways.  Its  termination  may  either  be  automatic,  as  a 
result  of  some  other  event,  or  be  brought  about  by  special 
proceeding.  So  the  relation  terminates  through  death 
of  the  officer,  expiration  of  the  term,  if  appointed  for  a 

1  See  Hue  de  Grais,  §  70. 

2  Law  of  May  24,  1861  (G.  S.  1861,  p.  241),  S.  S.  p.  288;  B.  G.  B. 
§  iQ7-  8  B-  G.  B.  §§  394,  400,  411. 

4  Law  of  March  27, 1872  (G.  S.  1872,  p.  268),  S.  S.  p.  423  and  supple- 
mentary laws. 

6  Law  of  May  20,  1882  (G.  S.  1882,  p.  298),  S.  S.  p.  439;  Law  of 
March  28,  1888  (G.  S.  1888,  p.  48) ;  Law  of  June  i,  1897  (G.  S.  1897, 
p.  169),  etc. 


THE   LAW   OF   ADMINISTRATIVE    OFFICERS  2 17 

particular  period,  or  conviction  in  a  criminal  case  in- 
volving loss  of  office.  The  second  manner  of  termina- 
tion may  occur,  firstly,  through  voluntary  resignation. 
There  is  no  legal  right  to  resignation  according  to  the 
Prussian  law,  for  it  is  left  to  the  discretion  of  the  appoint- 
ing authority  to  refuse  acceptance  in  case  the  general 
good  requires  it.1  Secondly,  the  officer  may  be  retired 
on  pension,  either  with  or  without  his  consent.  Thirdly, 
the  official  relation  may  terminate  through  his  dismissal. 
In  the  case  of  the  ministers  and  of  the  lower  officers  ap- 
pointed subject  to  removal  this  dismissal  may  be  arbi- 
trary, but  in  general,  as  has  been  seen,  it  can  occur  only 
as  a  result  of  a  disciplinary  trial  for  an  offence  in  office. 

1  A.  L.  R.  1794,  Title  10,  Part  II,  §§  95,  96. 


CHAPTER 

THE  POLICE  POWER 

IN  the  introductory  chapter  we  considered  the  origin 
and  development  of  the  concepts,  internal  adminis- 
tration and  police.  We  saw  that  the  term  police, 
originally  designating  all  secular  activity  of  the  state, 
was  gradually  narrowed  in  scope  by  the  successive 
establishment  of  special  branches  of  state  activity  for 
foreign  affairs,  justice  and  finance,  leaving  the  term  police 
negatively  defined  as  all  that  residue  of  state  activity 
not  comprised  within  one  of  the  four  other  departments. 
/In  this  sense  police  was  identical  with  internal  adminis-i 
/  tration,  as  we  saw,  and  comprised  two  classes  of  activity] 
*— -the  so-called  security  police  and  the  welfare  police] 
The  former  was  concerned  with  public  safety  and  health 
by  preventing  action  injurious  thereto ;  the  latter  under- 
took the  furtherance  of  public  welfare  by  positive  pro- 
motive  measures. 

Furthermore,  we  saw  that  later  on  the  term  police 
came  to  be  still  more  restricted  by  limitation  to  the  former 
of  the  two  types  of  police  activity  and  that  as  a  result  of 
the  provision  in  §  10,  n,  17  of  the  General  Code  of  1794, 

218 


THE   POLICE   POWER  2IQ 

the  function  of  the  police  was  denned  as  the  preservation 
of  public  safety  and  order.  This  is  the  general  clause  on 
which  the  police  authorities  must  rest  their  power  to 
interfere  with  the  liberty  or  property  of  an  individual 
and  this  is  the  sense  in  which  the  term  police  is  generally 
understood. 

The  police  jurisdictional  clause  in  the  General  Code 
of  1794  establishes  another  important  principle  of  police 
action. 

The  words  of  the  jurisdiction  definition  are  that  it  is 
the  function  of  the  police  to  adopt  the  necessary  measures 
for  the  maintenance  of  public  safety  and  order,  from 
which  qualification  has  followed  the  principle  of  commen- 
surability  of  police  action.  That  is  to  say,  an  inter- 
ference on  the  part  of  the  police  in  the  liberty  and  prop- 
erty of  an  individual,  even  though  for  legal  ends,  must 
not  be  greater  than  necessary  for  the  accomplishment 
of  those  ends. 

There  is  also  a  broader  sense  in  which  the  term  police 
is  used,  based  on  the  fact  that  power  to  interfere  with  the 
liberty  or  property  of  individuals  has  been  granted  by 
law  in  many  cases  not  falling  under  the  general  definition 
of  police  activity.  Every  branch  of  internal  adminis- 
tration, whether  engaged  in  preventing  undesirable 
actions  or  in  furthering  institutions  for  the  public  good, 
requires  a  measure  of  coercive  power  for  the  accomplish- 
ment of  its  ends.  This  power,  which  must  always  be 


220         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

given  by  express  provision  of  law,  is  therefore  an  exten- 
sion of  the  ordinary  police  power  and  is  sometimes 
termed  "administrative  police,"  in  distinction  from  the 
general  police  power. 

We  shall  not  consider  here  that  activity  of  the  police 
organs  which  consists  in  assisting  the  criminal  jurisdiction 
of  the  courts.  In  the  apprehension  of  evil-doers  and  in 
the  execution  of  judicial  sentences,  the  police  adminis- 
tration is  not  exercising  an  independent  function,  but  is 
merely  auxiliary  to  the  criminal  courts  and  hence  a  part 
of  the  judicial  machinery.  So  also  in  regard  to  the 
jurisdiction  of  police  authorities  to  inflict  punishments 
for  minor  offences.  Here  the  authority  acts  judicially 
in  the  nature  of  a  court  of  lowest  jurisdiction,  not  as  an 
administrative  organ,  and  need  not  therefore  be  con- 
sidered from  this  point  of  view. 

In  the  chapter  on  the  organization  of  the  administra- 
tion, we  saw  that  the  organs  for  the  police  functions  are 
those  of  state  administration  in  general.  The  local 
police  authorities  in  the  cities  are  either  special  police 
authorities  (Polizeiprasidium),  the  magistrat  or  the 
mayor.  In  the  rural  areas  there  are  considerable 
variations  in  the  various  parts  of  the  state,  for  it  may  be 
either  the  precinct  director,  and  this  is  the  general  rule, 
or  the  directors  of  joint  communes,  or  the  mayor,  as  the 
case  may  be. 

Above  the  local  police  authorities,  which  even  when 


THE   POLICE   POWER  221 

organs  of  local  self-administration  act  in  this  capacity 
purely  as  state  authorities,  is  the  hierarchy  of  officials, 
circle  director,  district  president,  province  president 
and  minister  of  the  interior.  These  authorities  are  both 
controlling  authorities  and  act  originally  in  specific  police 
matters.  The  general  activity  of  these  organs  in  the 
issuing  and  enforcing  of  police  ordinances  and  of  police 
orders  was  discussed  in  the  chapter  on  administrative 
action. 

A  word  remains  to  be  said  about  the  immediate  execu- 
tive organs  of  the  police,  whose  powers  are  somewhat 
different  from  those  of  the  ordinary  officers  of  police  !/ 
administration.1  The  executive  police  comprises  three 
classes,  the  state  gendarmes  or  military  police  for  the 
country  (Gendarmerie),  the  state  police  in  the  cities, 
with  special  state  police  departments  (Schutzmanschaft) 
and  the  local  police  in  other  communes  (Gemeinde- 
polizei).  The  Gendarmerie  was  constituted  in  the  first 
part  of  the  last  century  on  the  French  model  and  is 
organized  on  a  strict  military  system,  though  not  part 
of  the  military  force  itself.  The  gendarmes  are  subor- 
dinate to  the  civil  officers,  especially  the  circle  directors, 
and  must  render  assistance  to  the  local  police  authorities 
when  called  upon  to  do  so.  In  many  of  the  more  impor- 
tant cities,  the  police  functions,  instead  of  being  exer- 
cised by  the  mayors,  which  is  the  normal  condition, 
1  See  Hue  de  Grais,  §  217. 


\ 


222         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

have  been  intrusted  to  special  state  organs  as  permitted 
by  law.1  In  those  cities  the  executive  police  is  a  state 
organization,  subject  to  a  state  official  known  as  police 
president  or  police  director,  with  a  quasi-military  system 
of  subordinates.  In  the  smaller  cities  and  in  the  rural 
communes,  the  executive  police,  though  exercising  state 
functions,  is  composed  of  local  officers  and  controlled  by 
the  organs  for  local  self-administration. 

The  executive  police  not  only  has  special  powers  in  its 
capacity  as  an  arm  of  the  criminal  justice,  but  also  in  its 
proper  administrative  functions.  So  besides  the  cases 
of  arrest  for  criminal  actions  or  violations  of  the  law,  a] 
policeman  may  take  individuals  into  custody  either  for 
the  protection  of  the  individual  himself  or  for  the  pres- 
ervation of  public  safety  and  order.  But  such  custody 
cannot  exceed  one  day  in  duration  and  must  then  be 
followed  by  liberation  or  by  commitment  to  the  proper 
authorities.  In  exceptional  cases,  the  policemen  are 
permitted  to  resort  to  the  use  of  weapons,  if  no  other 
way  of  meeting  an  emergency  exists. 

We  shall  now  consider  more  in  detail  the  laws  govern- 
ing special  branches  of  police  activity.  Security  police 
comprises,  as  is  seen  also  in  the  provisions  of  the  General 
Code  itself,  two  forms  of  protective  measures,  those 
calculated  to  safeguard  the  state  and  society  itself 
against  dangers  from  within,  and  those  intended  for  the 
1  Law  of  March  n,  1850,  §  2. 


THE   POLICE   POWER  223 

security  of  the  individuals  who  make  up  the  state.  The 
former  consist  of  limitations  on  the  liberty  of  motion 
and  domicile,  on  the  liberty  of  association  and  assembly, 
on  the  liberty  of  speech  and  of  the  press.  The  latter 
comprise  the  protective  measures  against  natural  dan- 
gers, fire,  water,  etc.,  against  hazardous  occupations  and 
against  dangers  to  the  public  health. 

Safety  of  the  State 

Considering,  then,  to  begin  with,  the  police  measures 
directed  to  the  protection  of  the  state  and  society  as  a 
whole,  we  see  that  they  consist  firstly  in  limitations 
of  the  liberty  of  motion  and  of  domicile.  The  liberty 
to  change  one's  domicile  within  the  state  at  will  is  his- 
torically a  recent  right  in  Prussia.  In  the  early  state, 
each  community  or  feudal  owner  could  refuse  permission 
to  settle  within  his  district,  and  as  late  as  the  eighteenth 
century  the  state  police  imposed  considerable  restrictions. 
In  the  early  part  of  the  last  century  this  liberty  of  motion 
and  abode  was  gradually  developed,  and  in  1842  a  law 
formally  established  it,  with  certain  restrictions.1  In 
1867  the  legislature  of  the  North  German  Federation 
regulated  the  whole  subject  by  a  special  law  partly 
superseding  the  state  laws,  partly  preserving  their 
applicability. 

1  Law  of  Dec.  31, 1842  (  G.  S.  1842,  p.  5),  S.  S.  p.  104. 


224         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

By  this  law,  every  federal  citizen  has  complete  freedom 
to  remain  in  any  place  within  the  country  where  he  is 
able  to  provide  himself  with  a  living,  and  may  acquire 
property  and  engage  in  an  occupation  where  he  will. 
Neither  religious  belief  nor  lack  of  local  citizenship  may 
be  made  ground  for  interfering  with  this  right.  But  the 
limitations  imposed  by  state  law  on  the  liberty  of  abode 
of  persons  who  have  been  punished  for  offences  are 
expressly  left  untouched,  and  persons  subjected  by  the 
laws  of  a  state  to  such  limitations,  and  persons  who  have 
been  punished  within  a  year  for  continued  beggary  or 
vagrancy,  may  be  excluded  from  every  other  state.  In 
Prussia  the  limitations  imposed  on  persons  punished  for 
offences  are  contained  in  the  law  of  1842.  The  require- 
ments as  to  the  duty  of  all  newcomers  to  announce  their 
arrival  to  the  police  authorities  also  remain  in  force, 
for  these  are  not  limitations  on  the  liberty  of  abode  in 
violation  of  the  imperial  law.  But  failure  to  obey  such 
requirements  cannot  be  punished  with  the  loss  of  the 
right  of  domicile. 

The  only  other  valid  cause  for  refusing  a  newcomer  the 
right  of  settlement  is  contained  in  the  power  of  the  com- 
mune to  exclude  paupers  or  to  expel  them  in  the  period 
between  their  arrival  and  the  accrument  of  a  legal  claim 
for  support.  A  commune  may  not  levy  a  contribution  on 
newcomers,  nor  may  it  demand  the  payment  of  taxes 
until  after  a  sojournment  of  at  least  three  months.  All 


THE   POLICE   POWER  225 

other  restrictions  of  the  liberty  of  abode  of  federal  citi- 
zens are  unlawful.  Banishment  is  therefore  illegal  when 
applied  to  federal  citizens. 

These  provisions  are,  however,  not  applicable  to  for- 
eigners, who  may  be  expelled  by  the  single  states  when 
that  is  deemed  desirable.  The  imperial  criminal  code 
expressly  permits  expulsion  by  the  state  authorities  in 
certain  cases,1  but  beside  these  express  provisions,  it  is  a 
recognized  principle  that  a  state  has  the  right  to  expel 
foreigners  whose  presence  is  deemed  dangerous  to 
public  safety  and  order.2  As  this  right  of  the  single 
states  in  Germany  with  respect  to  foreigners  has  not 
been  limited  by  the  Empire,  it  remains  intact.  Nor  has 
a  foreigner  any  right  to  bring  complaint  in  such  a  case 
before  the  administrative  courts,  though  he  may  protest 
to  the  higher  authorities.3 

The  converse  of  the  right  of  the  state  to  expel  foreign- 
ers is  the  power  to  prevent  its  own  citizens  from  leaving 
the  country.  This  right  was  formerly  an  unlimited 
one,  but  was  restricted  in  Prussia  by  Art.  2  of  the 
constitution,  which  allowed  the  liberty  of  emigration  to 
be  restricted  only  with  regard  for  the  requirements  of 
military  service.  The  imperial  criminal  code  makes  it  a 
crime  punishable  by  fine  or  imprisonment  for  one  liable 

1  Strafgesetzbuch,  §  39  (2) ;  §  284,  paragraph  2 ;  §  361  (2) ;  §  362,  para- 
graph 4.  2  Meyer-Anschiitz,  p.  795 ;  O.  Mayer,  II,  p.  456. 
8L.  V.  G.  1883,  §130. 

Q 


226         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

to  military  service  to  leave  the  federal  territory  without 
permission. 

The  police  authority  charged  with  putting  into  effect 
these  different  limitations  of  the  freedom  of  choosing  one's 
abode  is  in  general  the  district  president.  He  may  im- 
pose the  legal  restrictions  on  the  freedom  of  abode  of  ex- 
convicts,  and  is  the  authority  for  decreeing  the  expulsion 
of  foreigners  and  for  preventing  the  emigration  of  citizens 
in  the  cases  sanctioned  by  law.  The  right  of  refusing  an 
individual  permission  to  settle  in  a  commune  on  the 
ground  of  pauperism  is  exercisable  by  the  commune 
executive. 

These  various  limitations  on  the  liberty  of  change 
of  abode  constitute  the  first  class  of  restrictions  imposed 
on  the  individual  in  the  interests  of  the  state  or  society  as 
a  whole.  The  second  class  comprises  the  limitations  on 
the  freedom  of  the  press.  Liberty  of  the  press  did  not 
exist  in  Prussia  prior  to  1848.  Before  that  time,  a 
censorship  existed  which  forbade  the  printing  of  any  and 
all  material  without  previous  permission.  The  revolu- 
tionary movement  of  1848  resulted  in  the  declaration  of 
the  liberty  of  the  press  and  the  abolishment  of  the  censor- 
ship, both  of  which  principles  were  embodied  in  the  con- 
stitution two  years  later.  Limitations  of  the  liberty  of 
the  press  could  henceforth  be  imposed  only  by  act  of  the 
legislature,  not,  as  previously,  by  administrative  action. 
An  act  of  May  12,  1851,  regulated  the  liberty  of  the 


THE   POLICE   POWER  227 

press  in  Prussia,  but  this  was  partly  superseded  by  the 
provisions  of  the  federal  industrial  code  of  1869  (Gewer- 
beordnung).  Then  by  the  constitution  of  the  Empire 
in  1871  the  jurisdiction  of  the  federal  government  was 
extended  to  the  supervision  and  legislative  regulation  of 
the  press.1  In  the  exercise  of  this  jurisdiction,  a  law 
was  passed  on  May  7,  1874,  which  expressly  excluded  all 
limitations  on  the  right  of  printing,  except  those  imposed 
or  permitted  by  the  law  itself.  These  two  imperial 
laws,  then,  —  the  industrial  code  (Gewerbeordnung) 
and  the  law  concerning  the  press,  —  together  with  such 
state  acts  as  are  expressly  sanctioned  in  the  imperial 
enactments,  contain  the  law  concerning  the  limitations 
on  the  liberty  of  the  press. 

The  imperial  law  concerning  the  press 2  applies  to  all 
printed  publications,  that  is,  all  products  of  printing 
presses  or  of  other  mechanical  or  chemical  reproductions 
intended  for  dissemination,  whether  writings,  pictures  or 
music  with  words  or  explanations.  Dissemination  in- 
cludes also  the  affixing  or  exhibiting  of  publications  in 
places  accessible  to  the  public.  The  right  to  pursue 
publication  as  a  business  cannot  be  denied  either  by  act 
of  the  administration  or  by  decree  of  the  courts.  It  is 
subject  to  such  limitations  and  burdens  only  as  the 

1  Art.  IV,  §  16. 

2  Law  of  May  7,  1874  (R.  G.  Bl.  p.  65),  S.  S.  p.  326,  not  applied  to  the 
territory  Alsace-Lorraine,  for  which  a  special  law  of  Aug.  8,  1898. 


228         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

imperial  industrial  code  imposes.1  These  include  the 
duty  to  notify  the  authorities  of  the  opening  of  the 
business,2  the  requirements  of  a  license  from  the  local 
police  authority  for  the  sale  of  publications  in  public 
places,3  the  prohibition  on  the  peddling  of  publications 
calculated  to  offend  religious  or  moral  sensibilities  or 
those  solicited  through  offers  of  prizes  or  winnings,  or 
those  appearing  in  instalments  and  not  showing  plainly 
the  total  price.  In  every  case  of  the  peddling  of  publi- 
cations, the  pedler  must  carry  a  list  of  the  publications 
dealt  in  and  submit  it  for  approval  to  the  administrative 
authorities  of  his  domicile.4  The  dissemination  of  publi- 
cations when  not  pursued  as  a  business  may  be  forbidden 
by  the  local  police  authorities  in  certain  specified  cases.5 
In  every  publication  must  appear  the  name  and  address 
of  printer,  publisher  and  editor.6  Papers  and  periodicals 
appearing  oftener  than  once  a  month  must  also  be  pro- 
vided in  every  number  with  the  designation  of  the  legally 
responsible  editor,  who  must  be  an  independent  resident 
of  the  Empire  and  not  deprived  of  the  honorary  rights 
of  citizens.  In  the  case  of  all  periodicals,  not  purely 
devoted  to  the  interests  of  the  sciences,  arts  or  crafts,  a 
copy  of  each  number  must  immediately  upon  distribution 

1  Gewerbeordnung,  June  21,  1869 ;  S.  S.  p.  1538. 

2  G.  O*  §  14.         3  Ibid.  §  43-         4 Ibid.  §  56  (12).         6  Ibid.  §  5. 
6Excepted  from  'this  requirement  are  printed  business  forms,  price 

lists,  visiting  cards,  etc.,  and  party  ballots  if  merely  designating  purpose, 
time  and  place  of  the  election  and  the  names  of  the  candidates. 


THE   POLICE   POWER  22Q 

be  delivered  to  the  police  authority  of  the  place  of  publi- 
cation. Periodicals  which  carry  advertising  are  obliged 
to  receive  and  print  official  communications  at  the  regular 
rates,  when  requested  thereto  by  the  police  authorities. 
Periodicals  are  obliged  to  print  rectifications  of  facts 
stated  therein,  free  of  charge. 

Foreign  publications  may  be  forbidden  by  the  im- 
perial chancellor  if  twice  convicted  within  one  year  of 
punishable  offences  resulting  in  orders  of  confiscation. 
In  time  of  war  or  war  danger,  communications  con- 
cerning the  movement  of  troops  or  means  of  defence  may 
be  forbidden  by  the  imperial  chancellor.  Invitations 
through  the  newspapers  to  contribute  funds  for  the  pay- 
ment of  fines  imposed  for  criminal  acts,  are  forbidden. 
Papers  may  not  publish  indictments  or  other  official  docu- 
ments in  a  criminal  proceeding,  until  the  same  have  been 
publicly  announced. 

The  responsibility  for  criminal  acts  committed  by 
means  of  publication  is  determined  by  the  ordinary  pro- 
visions of  the  criminal  law.  In  case  of  periodicals,  the 
responsible  editor  is  punishable  as  factor  unless  his  liabil- 
ity is  excluded  by  special  circumstances.  In  case  the 
content  of  a  publication  constitutes  a  ground  for  criminal 
action,  the  responsible  editor,  the  publisher,  the  printer 
and  the  one  engaged  in  dissemination  may  be  liable  for 
criminal  negligence  —  so  far  as  not  liable  as  principals 
or  accessories  —  if  they  have  failed  to  use  due  care  to 


230         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

prevent    such    contents    from    being   published.      The 
prosecution  must  occur  within  six  months. 

Confiscation  of  publications  without  judicial  decree 
can  occur  only  (i)  if  the  required  forms  as  to  name  and 
address  of  publisher,  printer  and  responsible  editor  have 
not  been  observed,  or  if  it  is  a  foreign  publication,  whose 
distribution  has  been  forbidden;  (2)  if  it  contained 
disobedience  to  an  order  of  the  chancellor,  forbidding  the 
publishing  of  military  information  in  time  of  war  or 
danger;  or  (3)  if  the  contents  contain  a  violation  of 
the  criminal  laws  by  inciting  to  treason,  by  offending 
the  emperor  or  ruler  of  a  state,  by  urging  disobedience  to 
the  laws,  by  inciting  to  acts  of  class  hatred,  or  by  reason 
of  their  immoral  or  obscene  character.  In  case  of  such 
administrative  orders  of  confiscation,  a  decision  by  a 
court  of  criminal  jurisdiction,  confirming  or  disapproving 
the  seizure,  must  be  sought  by  the  state's  attorney  within 
twenty-four  hours  and  be  rendered  within  another 
twenty-four  hours  thereafter.  If  the  police  authorities 
have  acted  without  direction  of  the  state's  attorney, 
they  must  report  their  action  to  him  within  twelve  hours, 
and  he  may  either  order  the  confiscated  goods  returned 
or  request  confirmation  of  the  action  by  the  courts.  If 
the  confiscating  authority  has  not  received  such  judicial 
confirmation  within  five  days,  the  articles  must  be 
returned.  A  decision  of  the  court  disapproving  the 
seizure  is  final.  A  decision  confirming  the  seizure  be- 


THE   POLICE   POWER  231 

comes  inoperative  if  criminal  prosecution  in  the  matter 
has  not  been  instituted  within  two  weeks  of  such  con- 
firmation. 

Finally,  the  imperial  law  provides  that  it  does  not  affect 
the  special  laws  concerning  the  press  in  times  of  war, 
or  disorder,  nor  does  it  supersede  the  state  laws  regulating 
the  public  affixing  or  posting  of  bills  and  placards  or  the 
distribution  of  handbills.  This  is  therefore  still  de- 
termined in  Prussia  by  the  law  of  1851,  which  limits  the 
kinds  of  placards  or  posters  that  may  be  affixed  and 
requires  a  police  permit  for  their  posting  in  public  places.1 
Nor  does  the  imperial  press  law  affect  the  state  require- 
ments as  to  the  library  copies  which  in  Prussia  provide 
that  one  copy  of  every  publication  must  be  sent  free 
of  charge  to  the  royal  library  in  Berlin  and  one  to  the 
library  of  the  province  in  which  the  publisher  lives.2 
Special  taxes  on  the  press  or  business  of  publication  are 
excluded  by  the  law. 

These,  then,  are  the  limitations  and  the  only  limitations 
to  which  the  liberty  of  press  is  subject  in  Prussia  and,  as 
far  as  state  action  is  concerned,  the  only  ones  to  which 
it  can  be  subjected. 

The  third  class  of  limitations  imposed  on  individual 
liberty  in  the  interests  of  the  safety  of  the  state  as  a  whole 
are  the  limitations  on  the  liberty  of  association. 

The  liberty  of  assocation  includes  both  the  freedom    \, 

1  Law  of  May  12,  1851  (G.  S.  1851,  p.  273),  §  10.  zlbid. 


232         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

to  form  permanent  societies  and  the  freedom  of  assembly 
or  of  meeting  together  without  any  permanent  organiza- 
tion. Like  the  liberty  of  domicile  and  the  liberty  of 
the  press,  the  liberty  of  association  is  in  Prussia  a  recent 
right  born  of  the  revolutionary  movement  of  1848. 

Prior  to  that  time,  societies  in  general  were  forbidden 
and  political  assemblies  not  allowed.  On  April  6,  1848, 
a  measure  of  freedom  of  association  was  proclaimed  and 
in  1850  was  made  one  of  the  guarantees  of  the  consti- 
tution for  Prussian  citizens.1  Therein  it  was  declared 
that  all  Prussians  might,  without  prior  permission, 
assemble  peaceably  and  without  weapons  in  enclosed 
spaces.  Assemblies  in  the  open  were,  however,  left 
subject  to  the  requirement  of  prior  permission.  The 
right  to  organize  in  societies  for  lawful  purposes  was 
also  guaranteed  to  all  Prussians  in  the  constitution; 
but  this  right,  as  well  as  that  of  assembly,  was  expressly 
subjected  to  legislation  in  the  interests  of  public  safety. 
Political  societies  were  left  subject  to  limitations  and 
temporary  prohibitions  by  the  legislature. 

The  limitations  permitted  by  the  constitution  remained 
the  subject  of  state  legislation  until  the  Empire  in  the 
exercise  of  its  legislative  jurisdiction 2  began  to  regulate 
the  whole  matter  of  association.  For  many  years,  dis- 
connected laws  were  passed  on  the  subject,  until,  in 

1  Constitution  of  Prussia,  1850,  Arts.  29,  30. 
*  Imperial  Const.  Art.  4  (16). 


THE    POLICE   POWER  233 

1908,  the  imperial  law  concerning  associations  codified 
the  provisions  on  the  subject.1 

The  law  begins  by  declaring  the  right  of  all  citizens 
of  the  Empire  to  associate  and  assemble  for  lawful 
purposes.  This  right  is  subject  to  police  restrictions 
only  as  sanctioned  in  this  and  other  imperial  laws.  This 
means  that  state  laws  in  the  nature  of  police  restrictions 
are  invalid,  with  the  express  exception  of  measures  of 
safety  for  the  prevention  of  imminent  danger  to  life  and 
health  of  the  members  of  an  assembly.  Other  state 
regulations  as  to  associations  and  assemblies,  not  in 
the  nature  of  police  restrictions,  are  therefore  not  for- 
bidden by  the  law.  So  acts  forbidding  state  officers 
from  participating  in  certain  kinds  of  societies  or  assem- 
blies are  not  police  measures,  and  therefore  not  in  con- 
flict with  the  provisions  of  the  imperial  law. 

Societies  for  illegal  purposes  may  be  dissolved  by  ad- 
ministrative order,  which  order  may  be  attacked  before 
the  administrative  courts.  Associations  intended  to 
exercise  an  influence  on  political  affairs,  so-called  polit- 
ical associations,  must  possess  a  director  or  directors 
and  a  constitution.  The  director  must  deliver  a  copy 
of  the  constitution  and  a  list  of  the  officers  to  the  local 
police  authorities  within  two  weeks.  All  subsequent 
changes  in  constitution  or  officers  must  in  the  same  way 
be  communicated  to  the  police.  The  constitution  and 

1  Vereinsgesetz,  April  19,  1908  (R.  G.  Bl.  1908,  p.  151),  S.  S.  p.  332. 


234         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

its  amendments  must  be  in  the  German  language,  unless 
otherwise  permitted  by  the  higher  authorities. 

Public  assemblies  for  the  discussion  of  political  sub- 
jects must  be  announced  twenty-four  hours  before  to 
the  local  police  authority,  with  designation  of  the  place 
and  the  time.  But  meetings  publicly  advertised  need 
not  be  so  announced  to  the  police,  nor  need  assemblies 
of  voters  for  political  purposes  be  announced  between 
the  official  announcement  of  the  day  of  election  and 
the  termination  of  the  voting.  Specially  excluded  from 
the  concept  "political  assembly"  in  this  connection 
are  meetings  of  laborers  and  of  employers  for  considera- 
tion of  questions  of  the  employment. 

Public  meetings  in  the  open,  as  well  as  processions 
on  public  ways  and  places,  must  be  approved  by  the 
police.  The  organizer  of  the  meeting  or  procession  must 
request  this  approval  at  least  twenty-four  hours  before, 
with  designation  of  time  and  place.  This  approval 
must  be  in  writing  and  can  be  refused  only  if  public 
safety  appears  threatened  by  the  assembly  or  proces- 
sion, which  grounds  must  be  communicated  to  the 
organizer  immediately.  This  approval  may  by  state 
act  be  replaced  by  a  mere  requirement  of  notice. 
Funeral  and  wedding  processions  need  not  be  announced 
or  approved  and  other  classes  of  processions  may,  by 
act  of  the  central  state  authorities,  be  excepted  from 
these  requirements. 


THE   POLICE  POWER  235 

All  public  political  assemblies  must  have  a  chairman 
who  is  responsible  for  the  preservation  of  order  and  who 
may  declare  the  meeting  dissolved.  The  carrying  of 
weapons  at  any  public  meeting  or  procession  is  for- 
bidden, except  with  special  permission  or  by  virtue  of 
public  authority  to  do  so.  The  proceedings  in  public 
assemblies  must  be  in  German,  except  in  special  classes 
of  cases,  such  as  international  congresses,  and  voters' 
meetings  shortly  prior  to  the  elections.  Further  excep- 
tions by  state  legislation  are  permissible,  or  by  adminis- 
trative action  if  not  excluded  by  state  law. 

The  police  authorities  may  send  not  more  than  two 
agents  to  every  or  any  public  meetings.  These  must 
declare  themselves  to  the  chairman  or  organizer  of  the 
meeting  and  must  be  given  a  suitable  place  at  the  meet- 
ing. These  agents  may  declare  the  assembly  to  be  dis- 
solved, with  a  statement  of  the  reasons  for  such  action, 
if  the  required  evidence  of  proper  announcement  or 
approval  is  not  apparent,  if  admission  has  been  refused 
the  agents,  if  persons  illegally  carrying  weapons  are 
allowed  to  remain  in  the  meeting,  if  motions  or  resolu- 
tions are  discussed  containing  incitement  to  crime,  or 
if  persons  unlawfully  using  a  foreign  language  are  not, 
upon  demand  of  the  agent,  refused  the  floor.  In  case 
a  meeting  is  thus  dissolved,  the  chairman  may  require 
a  written  statement  from  the  police  authority  concern- 
ing the  grounds  for  the  order  of  dissolution,  which  may 


236        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

then  be  attacked  before  the  administrative  courts.  Upon 
dissolution  of  an  assembly,  it  is  the  duty  of  all  present 
to  depart. 

Minors  under  eighteen  years  of  age  are  not  per- 
mitted to  be  members  of  political  associations  nor  to 
attend  their  meetings  nor  other  public  political  meetings. 
The  fines  imposable  for  violations  of  the  provisions  of 
the  law  are  either  150  or  300  marks.  The  law  finally 
enumerates  those  provisions  of  existing  imperial  laws 
which  are  repealed  by  the  law  concerning  associations 
and  those  provisions  of  the  state  laws  which  are  not 
affected  by  the  imperial  law.  These  latter  include  the 
state  regulations  as  to  religious  societies  and  processions, 
as  to  associations  and  meetings  in  time  of  war  or  public 
disturbance,  as  to  agreements  of  rural  laborers  and 
servants,  as  to  strikes,  and  as  to  the  observance  of 
Sundays  and  holidays. 

The  protection  of  the  imperial  law  accorded  to  the 
liberty  of  association  is  extended  to  German  citizens 
only.  Hence,  foreigners  who  exercise  this  liberty, 
though  bound  to  observe  all  the  requirements  of  the 
imperial  law  as  regards  formalities,  are  not  protected 
against  restrictions  imposed  by  the  single  states  in  the 
general  exercise  of  their  police  power.  To  this  extent, 
therefore,  they  are  in  a  worse  position  than  are  citizens, 
which  was  true  also  with  regard  to  the  right  of  expulsion 
in  the  exercise  of  the  police  power. 


THE  POLICE  POWER  237 

So  far  there  have  been  considered  the  ordinary  re- 
strictions which  are  or  may  be  imposed  in  the  exercise 
of  the  police  power  on  certain  individual  liberties  in 
the  interest  of  the  safety  of  the  state.  But  there  are, 
as  was  seen  in  certain  provisions  of  the  imperial  laws 
regulating  the  press  and  the  -right  of  association,  ex- 
traordinary circumstances  which  may  be  met  by  ex- 
traordinary police  measures. 

In  case  of  mobs  and  riots,  the  police  may  use  all 
means  at  its  command  to  preserve  order,  and,  if  neces- 
sary, they  may  call  upon  the  military  forces  accord- 
ing to  Art.  5  of  the  constitution  of  Prussia.  In  more 
serious  cases,  there  is  the  possibility  of  declaring  martial 
law  in  threatened  districts.  The  right  to  declare  parts 
of  the  Empire  to  be  in  a  state  of  war  or  a  state  of  siege 
is  given  to  the  emperor  by  Art.  68  of  the  imperial 
constitution.1  The  conditions  and  effects  of  such  a 
declaration  were,  until  the  passage  of  an  imperial  law 

1  There  is  a  conflict  of  opinion  as  to  whether  the  right  to  declare  por- 
tions of  territory  to  be  in  a  state  of  war  is  an  exclusive  right  of  the  em- 
perors. The  weight  of  authority  is  to  the  effect  that  the  emperor  alone 
has  this  right.  Furthermore,  the  question  is  disputed  whether  the  indi- 
vidual states  may  declare  portions  of  their  territory  to  be  in  a  state  of 
siege,  as  provided  in  §  2  of  the  Prussian  law  of  June  4,  1851  (G.  S.  1851, 
p.  451),  or  whether  that  right  is  also  annulled  by  the  provisions  of  the 
imperial  constitution.  Here  the  weight  of  authority  seems  to  incline  to 
the  view  that  Prussia  has  not  the  power  of  her  own  initiative  to  declare 
a  district  to  be  in  a  state  of  siege.  (For  a  presentation  of  the  opposing 
view,  with  references  to  the  opinions  on  both  sides,  see  Georg  Meyer, 
"Verwaltungsrecht,"  §§  67,  68,  and  foot-notes.) 


238         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

on  the  subject,  to  be  determined  by  the  Prussian  law  of 
1851,  concerning  the  state  of  siege.1  As  no  imperial 
law  has  been  passed  as  provided  for  in  the  constitution, 
the  provisions  of  the  Prussian  law  are  still  in  effect. 
This  law  provides  that  the  declaration  of  the  state  of 
siege  shall  be  publicly  announced,  both  to  the  civil 
authorities  and  to  the  public  generally,  and  that  its 
effect  is  to  transfer  the  executive  power  from  the  civil 
to  the  military  authorities.  The  former  are  bound  to 
render  obedience  to  the  orders  of  the  latter. 

The  military  criminal  code  provides  that  during  the 
state  of  siege  all  military  persons  are  subject  to  the 
jurisdiction  of  courts  martial.2  The  civil  criminal  code 
makes  certain  crimes,  which  are  ordinarily  punishable 
by  life  imprisonment,  punishable  by  death  if  com- 
mitted in  a  district  declared  by  the  emperor  to  be  in 
a  state  of  war  or  which  is  the  scene  of  action  in  a  war 
against  the  German  Empire.3  These  are  all  necessary 
consequences  of  the  declaration  of  the  state  of  siege. 
There  are  other  consequences  which  may  or  may  not 
result  from  the  state  of  siege. 

The  most  important  of  these  optional  consequences 
of  the  declaration  of  the  state  of  siege  flow  from  the 
power  given  the  military  authorities  to  suspend  certain 

1  Law  of  June  4,  1851  (G.  S.  1851,  p.  451). 

2  Milit.  Str.  G.  O.  Dec.  i,  1898  (R.  G.  Bl.  1898,  p.  1189),  §  27. 
8  Einf.  G.  to  the  Str.  G.  B.  1870,  §  4. 


THE   POLICE   POWER  239 

of  the  constitutional  guarantees  in  such  places  and  for 
such  times  as  they  may  deem  advisable.  The  guaran- 
tees which  are  subject  to  suspension  during  the  state 
of  siege  are  those  contained  in  Arts.  5,  6,  7,  27,  28, 
29,  30  and  36  of  the  Prussian  constitution.  They  relate 
to  the  immunity  of  ^the  person,  of  the  dwelling  house 
and  of  correspondence,  to  trial  before  the  ordinary  courts 
of  law,  to  the  liberty  of  speech  and  of  the  press,  of  asso- 
ciation and  of  assembly,  and  to  the  limitations  on  the 
use  of  the  military  power. 

A  similar  enlargement  of  the  executive  power  may, 
according  to  the  provisions  of  the  same  law,  be  brought 
about  without  the  declaration  of  the  state  of  siege.  In 
case  of  war  or  riots,  if  public  safety  is  in  imminent  dan- 
ger, the  ministry  of  state  may  order  the  suspension  of 
the  above  enumerated  articles  of  the  constitution,  with 
the  exception  of  Art.  7,  guaranteeing  trial  before  the 
ordinary  courts  of  law.  The  ministry  of  state  must, 
in  case  any  of  the  constitutional  guarantees  are  so  sus- 
pended, account  to  the  legislature  immediately  for  such 
action. 

The  state  of  siege  or  the  strengthening  of  the  execu- 
tive power  without  declaration  of  a  state  of  siege  con- 
tinue for  the  time  specified  in  the  declaration,  or,  if  for 
an  indefinite  time,  until  the  termination  has  been 
officially  announced  in  the  same  manner  as  was  the 
commencement  of  the  exceptional  state. 


240         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

Safeguards  for  the  Individuals  in  the  State 

The  safety,  health  and  welfare  of  the  individual 
members  of  society  are  secured  by  a  great  number  of 
enactments,  some  legislative,  state  and  federal,  some 
administrative,  but  all  intrusted  for  their  application 
to  the  police  authorities.  Many  of  the  prohibitions 
calculated  to  protect  the  public  are  contained  in  the 
imperial  code.  Other  measures  are  contained  in  the 
various  special  codes  of  the  Empire,  others  in  the  acts 
of  the  Prussian  legislature  and  a  great  many  in  the 
ordinances  passed  by  the  police  authorities  in  the  lawful 
exercise  of  their  ordinance  power. 

The  general  jurisdiction  of  the  police  in  Prussia  to 
maintain  public  quiet,  safety  and  order  and  to  repulse 
dangers  gives  to  the  administration  a  large  measure  of 
power.  In  the  maintenance  of  public  safety,  the  police 
may  demand  of  any  individual  the  necessary  assistance, 
and  failure  to  render  such  assistance  in  cases  where  no 
appreciable  danger  to  the  individual  existed,  is  punish- 
able as  a  misdemeanor.1 

As  part  of  the  care  for  the  public  safety,  the  police 
authorities  must  take  measures  for  preventing  the 
occurrence  of  fires  and  provide  necessary  means  for 
combating  them.  Preventive  measures  are  found  partly 
in  provisions  of  the  criminal  code,  making  certain  kinds 

1  Str.  G.  B.  §  360  (10). 


THE   POLICE   POWER  241 

of  negligent  acts  with  fire  punishable.1  Other  measures 
are  contained  in  the  local  police  ordinances,  varying  in 
the  different  localities,  and  especially  building  regula- 
tions, which  will  be  considered  later  on,  contain  pro- 
visions intended  to  lessen  the  danger  from  fire.  The 
duty  to  provide  adequate  means  for  extinguishing  fires 
is  part  of  the  local  police  duty  of  the  communes.2  This 
includes  the  furnishing  of  a  water-supply,  of  engines,  of 
firemen,  etc.  The  personnel  for  the  extinguishing  of 
fires  may  be  either  professionally  or  voluntarily  organ- 
ized, but  it  may  also  be  imposed  as  a  duty  on  every 
member  of  a  commune  to  assist  in  the  extinguishing  of 
fires.3  So  house  owners  may  be  compelled  to  provide 
fire-extinguishers,  even  if  the  building  is  not  one  for 
public  use. 

Protective  measures  against  floods  are  also  within 
the  scope  of  police  activity  for  the  security  of  the  public. 
Here  the  police  has  no  general  authority  to  compel 
individuals  to  act  in  the  building  of  dikes,  etc.,  on  their 
property,  except  the  usual  power  to  require  aid  in  case 
of  emergency.  Indeed,  the  laws  forbid  acts  affecting 
the  earth's  surface  in  flood  districts  without  permis- 
sion. A  law  of  1848  concerning  dikes  and  diking4 
gives  the  district  authorities  the  right  to  act  in  regard 

1  Ibid.  2Law  of  March  n,  1850,  §  3. 

3  Law  of  Dec.  21,  1904  (G.  S.  1904,  p.  291). 

4  Law  of  Jan.  28,  1848  (G.  S.  1848,  p.  54). 


242         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

to  the  maintenance  of  natural  drainage  or  artificial 
dikes  in  flood  districts.  If  no  individual  has  a  legal 
duty  to  build  or  maintain  a  dike,  deemed  necessary  by 
the  district  authorities,  they  may  take  steps  toward 
forming  a  dike  union  (Deichverband).  These  are  public 
corporations  for  special  purposes  organized  by  royal 
order  and  consisting  of  all  the  owners  of  realty  in  the 
flood  district.  All  such  owners  are  compelled  to  join 
and  pay  their  contributions,  even  though  all  may  be 
opposed  to  the  formation  of  such  a  corporation,  but 
each  one  is  entitled  to  be  heard  before  action  is  taken. 
The  royal  order  in  each  case  determines  the  purpose  of 
the  union,  the  extent  of  the  duties  and  the  limitations  of 
property  imposed  on  the  owners,  supervisory  rights 
of  the  state  authorities,  the  organization  and  duties 
of  the  union  ofiicers,  and  the  rights  of  the  members  of 
the  union  to  a  voice  in  the  management  of  the  same. 
The  union  ofiicers  have  the  coercive  power  to  enforce 
their  determinations  and  may  acquire  necessary  land 
and  materials  by  expropriation  proceedings.  The  deter- 
mination of  whether  a  given  piece  of  property  is  to  be 
subjected  to  the  burden  of  contributing  to  the  diking 
works  is  finally  determined  by  the  administrative 
authorities  without  recourse  to  the  courts. 

Turning  from  the  consideration  of  police  measures 
against  natural  dangers,  we  come  to  the  police  activity 
intended  to  protect  the  public  from  dangers  caused  by 


THE   POLICE   POWER  243 

the  activities  of  human  agencies.  Here  the  police 
derives  its  general  power  again  from  the  police  juris- 
diction defined  in  the  General  Code  of  1794  and  from 
special  acts  dealing  with  particular  branches  of  police 
control.  Not  only  must  the  police  prevent  all  acts 
made  criminal  by  the  imperial  code,  but  it  must  pre- 
vent acts  which,  though  in  themselves  not  reprehen- 
sible nor  yet  made  punishable  by  law,  constitute  a 
danger  to  other  members  of  society.1 

The  police  may,  therefore,  forbid  any  exercise  of  the 
individual's  liberty  of  action  which  disturbs  public 
order  or  is  dangerous  to  others.  Conversely,  it  may 
command  the  fulfilment  of  legal  duties  whose  omission 
involves  danger  to  others.  To  the  extent  that  condi- 
tions inimical  to  quiet,  safety  and  order  exist,  therefore, 
the  police  may  interfere  with  individual  liberty  and 
property. 

Only  the  one  responsible  for  conditions  destructive 
of  public  quiet,  order  and  safety  may  be  obliged  to 
remedy  them.  Generally  there  will  be  an  active  agent 
who  is  responsible.  Whoever  was  the  legal  cause  of  the 
dangerous  condition  is  responsible  for  its  removal,  no 
matter  whether  he  was  consciously  at  fault  or  not. 

Furthermore,  the  owner  of  the  property  on  which  or 
through  which  the  danger  arises  is  responsible  for  its 
removal,  whether  or  not  he  be  otherwise  the  causal 
1  See  Fleiner,  §  23. 


244         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

agency.  The  relation  of  property  ownership  carries 
with  it  the  absolute  duty  to  maintain  it  in  a  condition 
free  from  danger  to  the  public. 

Finally,  in  those  cases  where  neither  legal  causal 
agent  nor  owner  can  be  reached,  it  becomes  the  duty  of 
the  commune  to  attend  to  the  removal  of  the  danger- 
ous conditions.  Third  persons  are  therefore  under  no 
obligation  to  act  in  the  removal  of  dangers  to  the  public, 
except  in  the  cases  of  emergency  mentioned  above. 

Among  the  measures  calculated  to  preserve  public 
quiet,  order  and  morals  are  the  following : 1  The  police 
issues  orders  for  the  observance  of  the  Sabbath  and 
holidays,  exercises  special  surveillance  over  inns  and 
taverns,  not  only  through  its  licensing  power,  but  also 
through  its  right  to  compel  the  closing  at  certain 
hours  and  to  forbid  sale  of  intoxicants  to  drunkards 
and  minors.  The  imperial  criminal  code  forbids  blas- 
phemy and  gambling  in  the  interests  of  public  order, 
punishes  acts  violating  public  decency  and  subjects 
prostitution  to  extensive  police  control  in  the  interests 
of  decency  and  health.  In  general,  any  undue  dis- 
turbance of  public  quiet  and  order  may  be  prohibited 
by  police  measures. 

An  important  branch  of  the  protective  action  in  the 
interests  of  the  public  deals  with  the  preservation  of 
the  public  health.  By  Art.  4,  §  15,  of  the  imperial 
1  See  Hue  de  Grais,  p.  369  ff. 


THE   POLICE   POWER  245 

constitution,  the  whole  subject  of  medical  and  veteri- 
nary activity  was  constituted  a  part  of  the  supervisory 
and  legislative  jurisdiction  of  the  Empire.  In  the  exer- 
cise of  this  jurisdiction,  the  Empire  has  passed  several 
regulative  laws.  The  Empire  has  not,  however,  assumed 
exclusive  jurisdiction  over  the  subject,  and  the  state 
has  also  exercised  its  remaining  jurisdiction  in  laws 
supplementing  the  imperial  regulations.  The  police 
measures  in  the  interest  of  public  health  are  found  also 
in  the  building  regulations  to  be  considered  below.1 

Regulations  as  to  infectious  and  contagious  diseases 
are  contained  in  an  imperial  law  of  1900 2  and  in  a 
Prussian  law  of  iQO5.3  The  imperial  law  imposes  a 
duty  of  notification  to  the  local  police  authority  of 
every  case  of  leprosy,  cholera  morbus,  typhoid,  yellow 
fever,  plague  or  smallpox  and  of  any  suspicious  cases 
of  these  diseases.  The  same  duty  of  notification  exists 
in  case  of  deaths  by  any  of  the  above-mentioned  dis- 
eases. This  duty  rests  primarily  on  the  physician  in 
the  case,  but  also,  if  there  is  no  physician,  on  the  head 
of  the  house,  on  every  person  engaged  in  the  treatment 
or  care  of  the  patient,  on  the  proprietor  of  the  house 
where  the  case  or  the  death  occurred,  and  on  the  coro- 
ner, in  the  order  named,  when  there  are  no  persons  of 
the  kind  previously  enumerated  in  the  list.  When  the 

1  See  later,  p.  255  ff. 

2  Law  of  June  30,  1900  (R.  G.  Bl.  1900,  p.  306). 
8  Law  of  Aug.  28,  1905  (G.  S.  1905,  p.  373). 


246        PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

cases  or  deaths  occur  in  public  institutions,  the  head 
of  the  institution  is  alone  charged  with  the  duty  of 
notifying  the  police.  Additional  requirements  of  state 
enactments  as  to  notice  are  expressly  reserved  in  the 
law. 

Upon  notification,  the  police  must  inform  the  com- 
petent health  officer,  who  is  then  obliged  to  institute 
an  examination  and  report  to  the  police,  who  are  au- 
thorized to  order  the  investigation  of  every  case.  The 
health  officer  has  all  requisite  authority  to  carry  out 
an  adequate  examination  of  the  patient  or  of  the  de- 
ceased, and  if  he  reports  the  existence  of  any  of  the 
named  diseases,  the  police  must  immediately  institute 
the  necessary  protective  measures.  In  emergency  cases, 
the  health  officer  himself  is  authorized  to  act  for  the 
prevention  of  the  spread  of  the  disease. 

The  protective  measures  include  isolation  and  super- 
vision. Observation  of  persons  suspected  of  being 
affected  with  or  capable  of  communicating  such  dis- 
eases may  be  ordered.  Quarantine  of  persons  coming 
from  infected  districts  is  also  permitted.  Isolation 
may  be  in  the  home  of  the  patient  or,  when  necessary, 
in  a  hospital,  and  signs  may  be  required  for  houses  in 
which  diseased  persons  are  living. 

jThe  higher  police  authorities  are  authorized  to  issue 
special  orders  for  districts  infected  with  or  threatened 
by  such  diseases.  These  may  consist  in  a  surveillance 


THE  POLICE  POWER  247 

of  manufactured  goods  calculated  to  spread  the  dis- 
ease, in  a  limitation  or  prohibition  on  public  markets, 
fairs  or  other  undertakings  attended  with  a  gathering 
of  large  crowds,  and  in  supervision  over  persons  and 
goods  engaged  in  the  business  of  transportation. 

Children  coming  from  infected  homes  may  be  ex- 
cluded from  schools,  the  use  of  public  wells  and  other 
waters  in  infected  localities  may  be  forbidden,  inmates 
of  infected  houses  may  be  obliged  to  move  into  other 
quarters  provided  by  the  authorities.  Goods  and 
rooms  may  be  subjected  to  disinfection  or,  if  necessary, 
destroyed.  For  the  prevention  of  the  plague,  orders 
may  be  issued  for  the  destruction  of  rats,  mice  and  other 
vermin.  Special  measures  for  the  disposition  of  bodies 
of  persons  who  have  died  of  one  of  the  enumerated 
diseases  may  be  required. 

The  adoption  of  rules  for  the  prevention  of  infection 
from  other  countries  is  left  to  the  Bundesrat.  In  cer- 
tain cases,  a  compensation  is  provided  for  to  be  paid 
persons  pecuniarily  damaged  by  the  police  measures 
for  public  health,  provided  they  themselves  have  acted 
without  fault. 

State  supervision  is  required  over  all  arrangements 
for  the  furnishing  of  a  public  water  supply  and  for  the 
proper  disposal  of  sewage  and  refuse,  and  it  is  made 
the  duty  of  the  communes  to  see  that  sanitary  condi- 
tions exist  in  those  regards. 


248         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

The  imperial  law  leaves  the  detailed  administration 
of  measures  for  the  prevention  of  the  spread  of  con- 
tagious diseases  to  the  legislation  of  each  state,  but 
provides  penalties  for  the  violation  of  the  health  meas- 
ures established  or  sanctioned  by  the  law.  In  Prussia, 
the  further  regulation  occurred  by  law  of  August  28, 
1905.  This  law  enlarges  the  list  of  diseases  which  must 
be  notified  to  the  police  authorities  and  extends  the 
provisions  of  the  imperial  law  as  to  investigation  of 
reported  cases.  The  protective  measures  are  specially 
regulated  as  to  supervision,  examination,  isolation  and 
disinfection  for  each  of  the  enumerated  diseases.  In 
certain  cases,  compulsory  treatment  may  be  ordered. 

The  local  police  authorities  are  made  the  general 
organs  for  carrying  out  the  state  and  imperial  health 
regulations,  so  far  as  not  otherwise  provided.  The 
determination  of  the  compensation  to  be  paid  in  case 
of  injury  or  destruction  of  property  by  disinfection  is 
regulated  in  detail  in  the  law,  as  well  as  the  manner  of 
meeting  the  expenses  of  the  investigation  and  protec- 
tive measures,  which  latter  are  also  public  charges. 

Along  similar  lines  to  those  followed  in  the  protection 
against  contagious  diseases  in  general  is  the  imperial 
compulsory  vaccination  law  of  1874.*  By  the  provi- 
sions of  this  law,  every  child  must  be  vaccinated  within 

1  Law  of  April  8,  1874  (R.  G.  Bl.  1874,  p.  31),  supplemented  by  minis- 
terial regulations  (M.  M.  Bl.  p.  448). 


THE   POLICE   POWER  249 

less  than  two  years  after  birth  and  every  pupil  in  public 
and  private  schools,  in  his  twelfth  year,  unless  the  child 
has  had  the  smallpox  within  five  years  previously. 
Vaccination  may  be  postponed  beyond  the  legal  period 
if  the  health  of  the  child  demands.  Unsuccessful 
vaccination  must  be  repeated  within  a  year,  and,  if  still 
unsuccessful,  again  within  another  year.  Official  doctors 
are  provided  for  to  perform  the  vaccination.  The 
physician  must  give  certificates  of  vaccination,  which 
the  parents  or  guardians  of  the  children  must  produce 
upon  demand.  The  detailed  regulation  of  the  matter 
is  left  to  the  individual  states,  which  may  also  retain 
in  effect  the  provisions  as  to  compulsory  vaccination  in 
time  of  epidemics. 

For  the  protection  of  the  public  against  danger  to 
health  through  food  and  other  articles  of  daily  use,  the 
empire  has  passed  two  laws,  one  in  1879  and  one  in 
1900.  The  first  of  these  laws1  deals  with  the  trade 
in  articles  of  consumption  and  of  daily  use  and  com- 
prises also  trade  in  toys,  wall  paper,  colors,  crockery  and 
petroleum.  The  law  gives  police  authorities  a  minimum 
jurisdiction,  leaving  the  states  free  to  enlarge  the  powers 
of  the  police  with  respect  to  such  trade.  The  police  is 
given  the  right  to  enter  any  place  of  business  where 
the  enumerated  articles  are  being  sold  and  to  take 
away  with  them  samples  for  investigation.  Such 
1  Law  of  May  14,  1879  (R.  G.  Bl.  p.  145). 


250         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

articles  must,  however,  be  paid  for  at  the  customary 
rates.  -; 

The  emperor  is  authorized,  by  and  with  the  advice 
of  the  Bundesrat,  to  issue  regulations  forbidding  certain 
ways  of  preparing,  preserving  and  packing  articles  of 
consumption  intended  for  sale  or  offering  for  sale  of 
articles  of  a  particular  kind,  the  sale  of  diseased  ani- 
mals or  the  meat  of  such  animals,  the  use  of  certain 
materials  in  the  manufacture  of  articles  of  clothing, 
toys,  wall  paper  and  crockery,  and  the  sale  of  petro- 
leum of  a  given  quality.  Furthermore,  by  imperial 
ordinance,  approved  by  the  federal  council,  the  busi- 
ness of  producing,  selling  or  offering  for  sale  of  goods 
intended  for  the  adulteration  of  food  or  other  articles 
of  consumption  may  be  forbidden.  These  ordinances 
must,  however,  in  every  case  be  submitted  to  the  par- 
liament, which  is  given  the  power  to  annul  as  far  as 
may  be  required.  Decrees  in  execution  of  this  law 
were  issued  in  1883  and  in  ipc^.1 

A  special  law  concerning  the  inspection  of  cattle 
intended  for  slaughtering  and  of  their  meat  was  passed 
by  the  Empire  in  igoo.2  This  law  requires  an  official 
inspection  of  all  cattle,  hogs,  sheep,  goats,  horses  and 
dogs  intended  for  consumption,  both  before  and  after 
slaughtering.  The  state  authorities  may  require  an 

1  Order  of  Sept.  14,  1883  (M.  Bl.  1883,  p.  236) ;  Order  of  Sept.  20, 
1905  (M.  Bl.  1905,  p.  193).  2  Law  of  June  3,  1900. 


THE   POLICE   POWER  251 

examination  of  all  animals  destined  to  slaughter  in  times 
and  districts  where  epidemics  are  raging  among  the 
live  stock.  The  state  authorities  are  commissioned  to 
determine  inspection  districts  with  a  technically  trained 
inspector  for  each.  He  must  give  his  approval  to  the 
slaughtering  of  every  animal  after  inspection  had.  If 
he  finds  on  examination  that  the  meat  is  unfit  for  human 
use,  he  must  appropriate  it  and  notify  the  police  authori- 
ties, who  may  permit  the  meat  to  be  otherwise  used  in 
a  way  not  dangerous  to  persons.  If  it  cannot  be  so 
used,  the  police  authorities  must  dispose  of  it.  Meat 
cannot  be  put  on  the  market  until  it  has  the  approval 
of  the  inspector.  Meat  which  is  only  conditionally  fit 
for  human  consumption  may  be  sold  only  after  such 
measures  have  been  taken  with  regard  to  it  as  the 
police  authorities  may  order,  and  under  declaration  of 
the  fact  that  it  was  only  conditionally  fit.  Special 
regulations  exist  for  meat  coming  from  foreign  countries, 
and  the  importation  of  canned  meat  is  forbidden  en- 
tirely. The  trade  in  horse  meat  is  subject  to  special 
requirements  as  to  notice,  etc.,  and  the  examination  of 
the  meat  must  be  by  approved  veterinary  doctors.  The 
detailed  administration  of  this  law  also  is  left  to  the 
regulation  of  the  states.1 

Finally,  an  imperial  law  for  the  prevention  of  con- 

1  For  list  of  Prussian  laws,  ordinances  and  orders  in  execution  of  this 
law,  see  Stier-Somlo,  "Verwaltungsgesetze,"  p.  1479,  note  i. 


2$2         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

tagious  diseases  of  cattle  and  live  stock  was  passed  in 
iQog.1  This  law,  like  the  other  imperial  health  laws, 
does  not  regulate  the  subject  exclusively,  but  merely 
makes  general  provisions  in  the  nature  of  minimum  re- 
quirements, leaving  not  only  the  execution  of  those 
requirements  to  the  single  states,  but  also  the  passing 
of  further  safety  measures.  To  prevent  the  introduc- 
tion of  contagious  cattle  diseases  from  foreign  countries, 
the  importation  of  live  stock  and  of  meat  may  be  for- 
bidden. As  regards  such  diseases  in  the  interior,  an 
obligation  of  notification  to  the  police  authorities  is 
imposed  for  a  list  of  twelve  contagious  diseases.  This 
is  followed  by  an  official  inspection  and  by  preventive 
measures.  Against  the  continual  danger  to  live  stock 
from  contagious  diseases,  various  measures  are  authorized 
by  the  law.  These  include  inspection  of  live  stock  in 
transportation,  prohibition  or  limitation  on  the  freedom 
of  driving  cattle  on  public  ways,  certificates  of  health 
for  all  cattle  brought  to  public  markets,  branding  of 
cattle,  regulation  of  dairies,  etc.  In  cases  of  special 
danger  from  contagious  diseases,  more  acute  protective 
measures  are  permitted  by  the  law,  and  for  each  kind 
of  disease  particular  regulations  have  been  passed. 

The  law  also  provides  for  compensation  for  animals 
killed  in  execution  of  the  provisions  of  the  law.     The 
determination  of  who  is  to  pay  the  compensation  and 
1  Law  of  June  26,  1909  (R.  G.  Bl.  1909,  p.  519). 


THE   POLICE   POWER  253 

to  whom  it  is  due  is  left  to  the  measures  of  the  indi- 
vidual states,  but  a  certain  minimum  compensation  by 
the  state  is  established  in  the  law.  As  in  all  the  other 
imperial  health  laws,  violations  of  the  requirements  of  the 
law  are  subject  to  penalties  by  fines  and  imprisonment. 

Special  regulations  exist  for  the  protection  of  public 
health  as  regards  the  disposition  of  corpses.  Trans- 
portation of  bodies  requires  a  permit  from  the  circle 
authorities.  Burial  can  only  be  in  the  public  cemeteries, 
which,  though  still  as  a  rule  the  property  of  church 
societies,  cannot  be  closed  to  members  of  other  re- 
ligious societies  not  possessing  a  cemetery.  New 
cemeteries  cannot  be  opened  without  police  approval, 
and  those  no  longer  in  use  cannot  be  used  for  other 
purposes  until  after  the  expiration  of  forty  years.1 
Since  1911  cremation  is  permitted  in  Prussia,  but  under 
very  strict  limitations.2  The  sanitary  police  is  also 
charged  with  the  duty  of  keeping  public  streets  and 
places  in  a  sanitary  condition  by  forbidding  the  throw- 
ing of  objectionable  materials  therein,  and  by  providing 
for  the  proper  cleansing  of  the  same.  Finally,  the  trade 
in  poisons  is  subject  to  special  limitations  as  regards 
police  permits,  trade  in  peddling,  etc.,  for  the  protection 
of  the  public. 

For   the   special  problems  of  public  health  in   the 

1  See  Hue  de  Grais,  §  256. 

2  Law  of  Sept.  14,  1911  (G.  S.  1911,  p.  193). 


254         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

various  relations  above  considered,  special  authorities 
in  addition  to  the  regular  police  organization  were  re- 
quired. The  Empire  indeed  in  the  exercise  of  its  juris- 
diction over  public  health  employs  the  regular  adminis- 
trative police  of  the  single  states.  But  for  purposes  of 
supervision  and  control,  special  imperial  authorities 
were  constituted  and  additional  state  administrative 
offices  created.  So  the  law  of  1900  constituted  an 
imperial  sanitary  council  in  connection  with  the  im- 
perial health  office,  the  members  to  be  elected  by  the 
Bundesrat.  This  council  assists  the  imperial  health 
office  in  the  exercise  of  its  functions  and  may  impart 
desired  information  to  the  state  authorities.  It  has 
furthermore  the  right  to  require  reports  and  to  send 
inspectors  who  are  to  be  aided  in  their  investigations  by 
the  state  authorities.1 

As  state  authorities,  there  are  in  Prussia,  besides  the 
regular  police  under  special  departments  of  the  minis- 
tries, technical  assistants.  Not  only  the  minister,  but 
also  the  district  president  as  regular  province  health 
authority  are  provided  with  medical  advisers.  There 
are  in  addition  state  advisory  medical  and  pharma- 
ceutical boards,  and  in  each  province  the  medical  com- 
missions. As  assistants  for  the  local  police  authorities 
in  health  matters,  official  health  officers  are  appointed 
who  must  pass  a  special  examination  and  who  receive  a 
1  Law  of  June  30,  1900,  §  43. 


THE   POLICE   POWER  255 

salary  and  pension.  These  officers  are  the  active  agents 
for  the  preservation  of  the  public  health  and  have  inde- 
pendent powers  of  action  in  case  of  emergency.  Be- 
sides these  public  physicians,  there  is  provided  a  sani- 
tary commission  for  each  commune  of  more  than  five 
thousand  inhabitants.1  For  the  purposes  of  protection 
against  infection  by  live  stock,  public  veterinarians  are 
provided  for  in  a  similar  capacity. 

In  order  to  employ  the  title  doctor  or  physician  or 
similar  designations,  an  individual  must  be  approved 
by  the  minister  of  education  on  the  ground  of  an  ex- 
amination.2 This  applies  to  all  kinds  of  physicians,  to 
midwives  and  apothecaries,  and  is  a  prerequisite  also 
to  appointment  in  any  official  capacity  in  the  state. 
But  the  practice  of  the  medical  profession,  if  not  carried 
on  under  the  designated  titles,  is  free  to  all. 

A  specialized  branch  of  administration  in  Prussia  is 
the  regulation  of  building,  which,  though  limited  pri- 
marily with  a  view  to  the  protection  of  public  health 
and  safety,  is  influenced  by  other  considerations  as  well.3 
The  provisions  of  the  imperial  civil  code  which  are 
calculated  to  protect  adjoining  owners  in  their  private 
rights  do  not  come  within  the  concept  of  police  build- 
ing regulations,  since  they  do  not  raise  any  public 
obligations  on  the  part  of  the  builder. 

1  Hue  de  Grais,  §  253.  2  G.  O.  §  29. 

8  Georg  Meyer,  §  61 ;  Hue  de  Grais,  §§  262-269. 


256         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

The  building  laws  are  not  codified  in  Prussia  as  they 
are  in  some  of  the  other  German  states,  but  are  con- 
tained in  a  variety  of  laws.  Most  of  the  building  regu- 
lations are  local  and  are  to  be  found  in  the  police  ordi- 
nances of  the  subordinate  authorities.  A  detailed  list 
of  references  is  therefore  not  possible,  but  the  general 
lines  followed  by  these  police  authorities  are  so  similar 
that  one  can  present  typical  regulations. 

The  Prussian  General  Code,  1794,  laid  down  certain 
general  principles;1  other  laws  in  1875  regulated  par- 
ticular features  of  the  building  activity,  and  many 
ministerial  orders  contain  special  requirements ;  but  for 
the  most  part  the  provisions  as  to  buildings  are  enacted 
by  each  local  police  authority  for  its  territory.  The 
law  of  1883  concerning  the  jurisdiction  of  the  adminis- 
trative authorities  2  designates  the  supervisory  functions 
of  the  district  and  circle  committees  with  respect  to 
building  regulations. 

The  building  regulations  contained  in  the  local  police 
ordinances  —  whether  for  communes,  circles,  districts 
or  provinces  —  regularly  require  a  police  permit  or 
license  before  building  can  be  begun.  The  General 
Code  had  indeed  declared  the  building  right  to  be  a  free 
right,  subject  only  to  limitation  by  law,  but  as  a  result 
of  the  later  police  legislation,  the  rule  in  all  of  Prussia 
requires  a  building  permit.  Important  repairs  or  altera- 

1  A.  L.  R.,  I,  8,  §  65  ff.  2  Zust.  Ges.  1883,  §§  143-146. 


THE   POLICE   POWER  257 

tions  are  subject  to  the  same  requirement.  Of  course, 
a  building  permit,  if  granted,  does  not  operate  against 
third  persons  to  deprive  them  of  any  private  rights 
which  would  be  violated  by  the  buildings  as  permitted. 
The  permit  merely  makes  that  lawful  as  regards  the 
public  authorities  which  would  otherwise  be  unlawful. 

One  who  builds  without  the  required  permission  is 
liable  to  punishment ;  and  if  his  building  violates  any 
building  provisions,  he  may  be  compelled  to  alter  it, 
or  even  to  tear  it  down  again  if  no  other  measure  will 
remedy  the  unlawful  features.  Indeed,  buildings  which 
have  been  put  up  in  accordance  with  all  the  require- 
ments of  the  law  may  become  unlawful  as  a  result  of 
subsequent  building  regulations  and  their  alteration  be 
required. 

The  petition  for  a  building  permit  must  be  handed 
in  to  the  local  police  authority  accompanied  by  plans 
and  specifications.  These  are  examined  with  reference 
to  security  of  the  building,  protection  against  fire,  sani- 
tary conditions  and  aesthetic  requirements.  The  pro- 
posed building  must  be  of  strong  enough  construction 
to  be  safe  against  collapse,  it  must  have  fireproof  roofs, 
the  proper  installation  of  stoves  and  chimneys,  adequate 
stairways  and  exits  in  case  of  buildings  used  by  the 
public,  etc.  Sanitary  considerations  demand  a  certain 
minimum  of  light  and  air  for  the  rooms,  limit  the  height 
of  buildings  with  reference  to  the  width  of  the  street, 


258         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

require  sanitary  plumbing,  etc.  Since  1907,  the  local 
administrative  organs  are  given  a  wide  measure  of 
discretion  in  refusing  permits  for  buildings  or  other 
erections  which  are  objectionable  to  the  sight.1  The 
relation  of  buildings  to  public  streets,  squares  and  parks 
is  regulated  by  law  of  1875,  which  likewise  leaves  the 
local  authorities  wide  discretion  in  the  adoption  of 
regulations  not  falling  under  the  general  police  powers.2 
In  cities,  an  inspection  of  the  building  is  generally  re- 
quired several  times  during  the  course  of  construction. 

For  the  administration  of  building  control,  the  regu- 
lar police  authorities  are  aided  by  a  corps  of  technical 
assistants.3  Directly  under  the  minister  of  public 
works  are  the  examining  boards  and  the  building  acad- 
emy for  the  development  of  that  branch  of  science. 
The  district  president,  as  province  authority,  is  aided 
by  technical  councillors,  and  in  the  circles  also  special 
building  officers  are  provided  for.  These  officials  must 
complete  a  four  years'  technical  course,  pass  an  exami- 
nation and  serve  two  years  in  some  position  of  practical 
experience.  After  passing  a  second  examination,  they 
are  commissioned  as  public  officers.  The  state  officials 
must  not  only  act  as  supervising  and  controlling  organs, 
but  must  direct  the  erection  of  state  buildings. 

*Law  of  July  15,  1907  (G.  S.  1907,  p.  260). 
-  Law  of  July  2,  1875  (G.  S.  1875,  P-  561). 
8  Hue  de  Grais,  §§  263,  264. 


CHAPTER  VIII 

POSITIVE  MEASURES  FOR  THE  FURTHERANCE  OF  THE 
MATERIAL  AND  MENTAL  WELFARE  OF  THE  INDI- 
VIDUALS IN  THE  STATE 

FROM  among  the  various  fields  of  positive  action  by 
the  state  for  the  benefit  of  its  members,  we  shall  choose 
for  consideration  only  three,  the  administration  of  poor 
relief,  the  regulations  for  the  benefit  of  the  working 
classes,  and  the  system  of  public  education. 

Poor  Relief 

Prior  to  the  Reformation,  the  whole  problem  of  poor 
relief  was  dealt  with  by  the  church.  Later  a  certain 
amount  of  public  activity  was  developed  by  the  cities. 
Not  until  the  nineteenth  century,  however,  was  the 
duty  of  caring  for  the  paupers  imposed  by  law  on  the 
local  administrative  bodies.  In  Prussia,  the  subject 
was  comprehensively  regulated  by  a  law  of  1842,  later 
superseded  by  an  imperial  law  of  1870,  for  which  the 
Prussian  law  served  as  model.  The  actual  state  of  the 
law  to-day  is  declared  in  the  act  of  1870  as  reenacted  in 


1  Law  of  May  30,  1908  (R.  G.  B.  p.  381). 
259 


260         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

This  law  provides  that  the  public  relief  of  pauper 
Germans  is  to  be  administered  by  poor  relief  unions, 
comprising  local  unions  (Ortsarmenverbande)  and  larger 
unions  (Landarmenverbande).  Local  poor  relief  unions 
may  be  composed  of  one  or  more  communes,  of  one  or 
more  manorial  precincts,  or  of  both  communes  and  pre- 
cincts, and  such  a  composite  union  is  considered  for  the 
purposes  of  the  law  a  unit.  The  support  of  indigent 
Germans,  for  whose  care  no  local  union  is  responsible, 
falls  upon  the  larger  unions,  whose  establishment  is 
left  to  the  individual  states,  but  must  in  general  com- 
prise the  territory  of  more  than  one  local  union.  Further- 
more, the  imperial  law  leaves  to  state  enactment  the 
composition  of  the  two  kinds  of  unions,  the  form  and 
extent  of  the  public  relief,  the  manner  of  raising  the 
necessary  funds,  and  the  relations  between  the  local  and 
larger  unions.  But  as  regards  the  right  to  pursue  their 
legal  rights,  local  unions  and  larger  unions  must,  accord- 
ing to  the  law,  stand  on  an  equal  footing. 

In  Prussia,  the  regulations  in  execution  of  the  im- 
perial law  were  embodied  in  an  act  of  March  8,  1871. 1 
As  a  rule,  the  local  poor  relief  unions  are  coextensive 
with  the  communes  and  manorial  precincts,  but  in  many 
cases  joint  unions  have  been  formed,  according  to  the 
provisions  of  Title  iv  of  the  rural  commune  act  of  1891, 
of  several  communes  or  precincts.  The  larger  poor 
1 G.  S.  1871,  p.  130. 


POOR   RELIEF  261 

relief  unions  are,  in  general,  coextensive  with  the 
province  corporations,  but  in  Hessen-Nassau  with  the 
district  and  in  East  Prussia  with  the  circle  corporations. 
Berlin  and  Breslau  each  constitute  poor  relief  unions 
for  themselves.  The  maintenance  of  asylums  for  in- 
digent, insane  and  idiots,  for  the  deaf  and  dumb  and  for 
the_blind,  as  well  as  of  poorhouses  and  houses  of  correc- 
tion is  the  duty  of  the  larger  unions.  The  costs  of  sup- 
port in  such  institutions  is  borne  in  part  by  the  local 
union  of  domicile  and  in  part,  at  least  two-thirds,  by  the 
circle  corporations. 

The  duty  of  the  poor  relief  union  to  furnish  support 
to  a  pauper  is  a  legal  obligation  toward  the  state,  but 
not  the  basis  of  a  legal  claim  for  the  pauper.  The 
manner  and  extent  of  granting  relief  is  regulated  by  the 
by-laws  of  the  poor  relief  unions,  subject  to  approval  by 
the  district  committee.1 

1  Zust.  G.  1883,  Title  IV,  §  40  ff.  The  required  support  includes 
shelter,  nourishment  and  treatment  in  case  of  sickness  (Law  of  March  8, 
1871,  §  i).  The  receipt  of  such  support  disqualifies  for  certain  public 
rights.  Not  so,  however,  care  for  the  sick,  treatment  in  public  institu- 
tions for  infirmities,  provision  for  the  young,  or  assistance  rendered  to 
relieve  temporary  emergencies.  Law  of  March  15, 1909  (R.  G.  Bl.  1909, 

P-  3i9)- 

The  so-called  Elberfelder'system  of  poor  relief  in  the  larger  cities  divides 
the  city  into  poor  relief  districts.  At  the  head  of  each  is  an  honorary 
director,  all  the  directors  being  directly  under  the  municipal  poor  relief 
deputation.  Each  district  is  subdivided  into  quarters  in  which  a  warden 
is  appointed  for  each  two  or  three  families.  These  wardens  personally 
examine  all  requests  for  support  and  in  case  of  small  amounts  may 


262         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

Paupers  are  given  a  right  of  protest  to  the  circle 
committee,  or,  if  a  city  of  more  than  one  thousand  in- 
habitants belongs  to  the  poor  relief  union,  then  to  the 
district  committee,  against  orders  of  the  local  poor 
relief  unions  concerning  the  extent  and  manner  of  the 
relief  to  be  granted.  Similarly,  against  such  decrees 
of  the  larger  unions,  when  consisting  of  a  single  circle, 
protest  may  be  made  to  the  district  committee. 

The  larger  unions  are  obliged  to  render  assistance  to 
the  local  unions  in  certain  cases,  and  the  local  unions 
may  protest  to  the  province  council  against  decrees  of 
the  larger  unions  as  to  such  assistance.  Controversies 
between  poor  relief  unions  as  to  the  duty  of  relief  in  a 
given  case  are  settled  in  the  last  instance,  after  consid- 
eration by  the  administrative  courts  of  the  state,  by 
the  imperial  home  office,  according  to  §  52  of  the  im- 
perial law  of  May  30,  igoS.1 

An  individual  may  acquire  a  domicile  for  support 
(Unterstiitzungswohnsitz)  through  either  residence,  mar- 
riage or  parentage.  Whoever,  after  the  completion  of 
the  sixteenth  year,  voluntarily  resides  uninterruptedly 
within  a  local  poor  relief  union  for  a  year  acquires  therein 
a  domicile  for  support.  Married  women  share  the  domi- 
cile for  support  of  their  husbands,  unless  the  husband 

concede  the  sums  independently.  In  case  of  larger  amounts,  the  assembly 
of  wardens  in  the  district  must  act  on  the  requests.  Hue  de  Grais,  p.  414, 
note  3.  *  See  later,  p.  265. 


POOR   RELIEF  263 

has  maliciously  deserted  the  wife,  or  unless  she  has 
obtained  a  decree  of  separation  and  is  self-supporting. 
Legitimate  children  share  the  domicile  for  support  of 
their  father  until  they  lose  it  by  voluntary  absence  of  a 
year  after  they  have  reached  the  age  of  sixteen  years. 
In  case  of  the  death  of  the  father,  the  children  share 
the  domicile  of  the  mother.  Illegitimate  children  share 
the  domicile  of  the  mother. 

Every  indigent  German  must  be  provisionally  cared 
for  by  the  local  poor  relief  union  in  which  he  happens 
to  be  when  the  need  for  public  support  arises,  whether 
or  not  he  has  his  domicile  of  support  within  the  union. 
Such  support  is,  however,  rendered  without  prejudice  to 
the  claim  to  reimbursement  by  that  union  which  is  le- 
gally bound  to  render  support  in  the  given  case.  The 
liability  for  costs  arising  from  the  relief  of  a  pauper  falls 
as  a  general  rule  upon  the  local  union  in  which  the  pau- 
per has  his  legal  domicile  for  support.  If  he  has  no  such 
domicile,  it  falls  upon  the  larger  union  in  which  he  hap- 
pened to  be  at  the  time  of  coming  into  need.  If  an  in- 
mate of  a  hospital  or  penal  institution  is  released  in  an 
indigent  state  and  has  no  domicile  for  support,  then  the 
larger  union  from  which  he  was  taken  to  the  institution 
is  liable  for  the  costs  of  his  support. 

If  a  local  union  is  called  upon  to  render  support  to  a 
pauper  whose  domicile  for  support  is  elsewhere,  it  may 
make  all  inquiries  of  the  pauper  as  to  his  home  and 


264         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

family  and  must  within  six  months  submit  a  claim  for 
costs  to  the  union  which  is  under  obligation  to  meet 
such  expenses.  If  a  recognition  of  the  obligation  does 
not  follow  within  two  weeks,  it  is  to  be  considered  as 
denied,  and  the  union  is  entitled  to  pursue  its  legal 
remedies  according  to  the  provisions  of  the  law  itself. 
So  far  as  controversies  that  arise  are  between  poor 
relief  unions  of  the  same  state,  the  laws  of  the  indi- 
vidual states  are  to  determine  the  manner  of  their  settle- 
ment. So  far  as  such  controversies  arise  between  poor 
relief  unions  of  different  states,  they  are  regulated  in  the 
imperial  law  itself. 

The  Prussian  law  of  1883,  concerning  the  jurisdiction 
of  the  administrative  authorities,1  determined  the  man- 
ner of  deciding  controversies  between  different  poor 
relief  unions  in  Prussia.  They  are  to  be  determined  by 
complaint  before  the  administrative  courts,  the  district 
committee  being  the  court  of  first  instance.  The  circle 
committees  act  as  judges  in  such  controversies  between 
poor  relief  unions  as  are  submitted  to  arbitration  under 
the  law  of  March  8,  1871.  With  respect  to  contro- 
versies between  poor  relief  unions  of  different  states, 
the  imperial  law  provides  that  a  poor  relief  union  which 
is  obliged  to  render  provisional  relief  to  a  pauper  not 
having  a  domicile  for  support  within  that  union  may, 
in  case  the  union  which  is  legally  bound  to  bear  the  ulti- 
1  Zust.  G.,  Aug.  i,  1883. 


POOR   RELIEF  265 

mate  costs  denies  its  obligation,  protest  to  the  adminis- 
trative superior  of  the  second  union.  The  authorities 
called  upon  for  decision  have  full  power  of  collecting 
evidence  and  compelling  attendance  of  sworn  witnesses 
and  experts.  The  decision  must  be  in  writing  and 
contain  the  grounds  of  the  determination. 

From  the  decisions  of  the  highest  state  authority  in 
the  above  cases,  appeal  may  be  had  to  the  imperial 
home  office  (Bundesamt  fur  Heimatwesen) .  This  is  a 
permanent  collegial  body  meeting  in  Berlin,  composed 
of  a  chairman  and  at  least  four  members  appointed  for 
life  by  the  king  of  Prussia  upon  nomination  of  the 
Bundesrat. 

The  chairman  and  at  least  half  of  the  members  of 
the  imperial  home  office  must  be  qualified  for  the  higher 
judicial  service  in  their  native  state.  The  procedure 
before  the  imperial  office  is  minutely  regulated  by  the 
law,  and  a  written  decision  with  reasons  for  the  same  is 
here  also  required.  These  decisions  are  final  and  con- 
clusive. The  execution  of  the  judgment  is  matter  for 
the  administrative  authority  first  appealed  to. 

A  poor  relief  union  which  is  legally  bound  to  support 
a  pauper  who  is  receiving  provisional  relief  from  another 
union  may  on  the  basis  of  an  agreement  with  the  sec- 
ond union  provide  for  his  permanent  support  therein. 
Furthermore  in  certain  cases  the  higher  administrative 
authorities  may  provide  for  the  further  support  by  the 


266         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

union  in  which  the  pauper  happens  to  be.  Otherwise 
the  union  rendering  the  provisional  relief  may  insist  on 
the  return  of  the  pauper  to  the  union  in  which  he  has 
his  domicile  for  support.  The  costs  of  transportation 
must  be  borne  by  the  union  of  domicile.  In  case  a  poor 
relief  union  is  financially  unable  to  meet  its  legal  obliga- 
tions, the  state  itself  must  provide  for  their  payment. 

Foreigners  must  be  provisionally  supported  by  the 
local  poor  relief  union  in  which  they  happen  to  be  at 
the  time  of  coming  into  need,  and  the  costs  must  be 
met  by  the  state  or  such  of  its  poor  relief  unions  as  it 
designates. 

The  provisions  of  the  imperial  law  have  reference  only 
to  the  duty  of  support  which  exists  for  the  public  poor 
relief  unions  and  do  not  therefore  affect  the  obligations 
of  support  resting  on  other  relations  such  as  member- 
ship in  a  family,  cooperative  or  mutual  society,  etc.  A 
poor  relief  union  which  has  rendered  a  pauper  support 
as  required  by  law  is  entitled  to  enforce  in  his  place  any 
claims  to  support  which  may  arise  out  of  the  existence 
of  such  private  relations.  In  the  examination  of  the 
situation  and  relations  of  a  pauper,  the  police  and  other 
administrative  authorities  are  bound  to  assist  the  poor 
relief  unions  in  such  ways  as  may  be  requested. 

Aside  from  the  system  of  public  poor  relief  as  pro- 
vided for  by  law,  there  is  a  large  amount  of  private 
activity  for  charitable  purposes  which  supplements  the 


PUBLIC   INSTRUCTION  267 

public  activity  by  looking  also  to  the  prevention  of 
conditions  leading  to  pauperism.  To  a  certain  extent 
this  private  activity  is  subject  to  special  state  control, 
particularly  as  regards  dealings  with  children;  but  it 
constitutes  no  part  of  the  administrative  treatment  of 
pauperism  and  does  not  therefore  fall  within  the  scope 
of  the  present  treatment. 

Public  Instruction 
Primary  Education 

In  the  Middle  Ages,  education  —  so  far  as  it  was  pro- 
vided for  at  all  —  was  not  a  function  of  state  activity, 
but  of  private  endeavor,  namely,  that  of  the  church. 
The  Reformation  in  Germany  first  developed  the  doctrine 
that  it  is  the  duty  of  the  state  to  provide  for  the  educa- 
tion of  its  citizens.  In  Prussia,  as  early  as  1717,  com- 
pulsory education  was  introduced,  and  under  Frederick 
the  Great  a  general  measure  concerning  public  schools 
was  passed  in  1763.  The  Prussian  General  Code  of 
1794  then  dealt  with  the  subject  and  reaffirmed  the 
principle  that  education  is  a  function  of  the  state.  In 
Title  12,  Part  II,  the  Code  contained  regulations  concern- 
ing primary  and  secondary  schools  and  universities. 
Though  education  was  recognized  as  a  function  of  the 
state,  private  instruction  was  not  forbidden,  but  sub- 
jected to  state  supervision. 


268         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

The  schools  were  maintained,  not  by  the  state  or  its 
administrative  subdivisions,  but  by  public  societies 
composed  of  the  adults  in  school  districts.  The  manage- 
ment of  the  schools,  however,  was  a  purely  state  matter. 
Early  in  the  nineteenth  century,  a  very  extensive  power 
of  control  was  given  to  the  district  governments,1  a 
power  which  still  remains  in  large  part  to-day.  The 
constitution  in  1850  contained  general  principles  as  to 
education.2 

According  to  Art.  26,  there  was  to  be  passed  a 
special  law  regulating  the  whole  subject  of  education. 
This  law  has,  however,  never  been  passed ;  and  in  1906 
an  amendment  to  the  constitution  permitted  the  regu- 
lation by  special  laws  and  confirmed  the  existing  enact- 
ments concerning  public  education.  The  effect  of  this 

1  Regierungsinstruktion,  1817,  §  18. 

2  It  declared  the  duty  of  the  state  to  care  adequately  for  the  education 
of  the  youth  in  public  schools,  and  the  duty  of  parents  to  see  that  their 
children  received  the  instruction  prescribed  for  the  public  schools.     The 
right  of  everyone  to  impart  instruction  and  to  found  and  conduct  schools 
was  guaranteed  provided  he  demonstrated  his  moral  and  mental  qualifi- 
cations therefor  to  the  public  authorities.    All  schools  and  educational 
institutions,  public  and  private,  were  declared  to  be  under  the  supervision 
of  state  authorities,  and  public  school-teachers  were  given  the  status  of 
state  officers.     Religious  instruction  was  to  be  left  to  the  direction  of  the 
religious  societies.    The  conduct  of  the  external  affairs  of  the  primary 
schools  was  made  matter  of  the  communes,  who  were  to  have  a  voice  in 
the  appointment  of  teachers  by  the  state.    The  cost  of  maintenance  was 
to  be  borne  by  the  communes,  with  state  help  when  required,  and  instruc- 
tion in  the  primary  schools  was  to  be  free. 


PUBLIC   INSTRUCTION  269 


amendment  was  to  suspend  the  provisions  of  the  con- 
stitution as  to  public  education  until  the  passage  of  a 
general  educational  code,  but  the  principles  expressed 
in  Arts.  21-25  are  m  general  those  at  the  basis  of  the 
law  to-day.  This  is  contained  in  a  number  of  separate 
enactments,  including  some  provisions  of  the  General 
Code  of  1794,  many  of  the  provisions  in  the  instruction 
of  1817  as  to  the  jurisdiction  of  the  district  governments 
in  school  matters,  and  certain  sections  of  the  law  of 
August  i,  1883.  Finally,  in  1906,  a  comprehensive  law 
further  regulated  the  subject  of  primary  schools,1  sup- 
plemented by  two  laws  in  1907^  and  one  in  1909^  con- 
cerning salary  and  pensions  of  public  school  teachers. 

The  erection  and  maintenance  of  primary  schools  is 
made  the  duty  of  the  communes  and  manorial  precincts. 
They  either  constitute  school  unions  (Schulverbande) 
for  themselves  or  are  members  of  composite  school 
unions  with  other  communes  and  precincts.  Cities,  as 
a  rule,  constitute  separate  school  unions.  The  consti- 
tution, alteration  and  dissolution  of  composite  unions, 
which  are  public  corporations  with  the  usual  powers, 
are  matters  for  the  state  supervising  authority  under 
limitations  established  by  law.  Tuition  may  be  re- 
quired of  non-resident  children.  The  costs  of  the 

1  Law  of  July  28, 1906  (G.  S.  1906,  p.  335).    In  force  for  all  provinces 
save  West  Prussia  and  Posen. 

2  Laws  of  June  10,  1907  (G.  S.  1907,  pp.  133-137). 

3  Law  of  May  26, 1909  (G.  S.  1909,  p.  93). 


270         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

primary  schools  are  raised  in  the  communes  by  local 
tax;  in  the  manorial  precincts  they  are  borne  by  the 
precinct  director.  The  costs,  in  case  of  composite 
school  unions,  are  borne  by  the  various  members  partly 
in  relation  to  the  number  of  children  sent  to  the  school, 
partly  in  relation  to  the  taxes  in  the  communes.  Each 
school  union  is  to  have  a  budget  and  a  treasury.  Each 
union  is  obliged  to  collect  a  certain  annual  amount  for 
building  purposes.  For  smaller  unions  a  subsidy  for 
building  purposes  is  granted  by  the  state,  and  in  case 
of  financial  inability  to  raise  the  necessary  school  funds, 
these  unions  may  be  granted  state  aid.  As  a  general 
rule,  the  primary  schools  are,  when  possible,  to  be  so 
organized  that  Catholic  children  are  taught  by  Catholic 
teachers  and  Protestant  children  by  Protestant  teachers. 
The  same  is  true  for  Jewish  children. 

As  regards  the  management  of  the  public  primary 
schools,  the  provisions  are  different  for  city  communes 
and  for  rural  communes.  In  cities,  the  preparation  of 
the  school  budget,  the  voting  of  school  funds,  the  manage- 
ment of  the  same,  and  the  appointment  of  officers  is 
left  to  the  regular  organs  of  city  administration.  For 
all  other  matters,  a  school  deputation  is  provided  for 
as  organ  of  the  city  executive  and  as  organ  of  the  state 
supervising  authorities.  This  deputation  consists  of 
members  of  the  executive  committee,  of  councilmen,  of 
educators  and  of  local  pastors.  The  members  of  the 


PUBLIC   INSTRUCTION  271 

executive  committee  who  are  to  act  on  the  school  depu- 
tation are  appointed  by  the  mayor,  who  may  himself 
become  a  member  and  preside  as  chairman.  The 
councilmen  are  elected  to  the  deputation  by  the  council, 
and  the  experts  are  chosen  by  the  first-mentioned  two 
classes  in  the  deputation.  The  election  is  for  six  years 
and  there  is  a  legal  obligation  to  accept  the  office. 
Furthermore,  special  school  commissions  may,  if  desir- 
able, be  constituted  by  the  communes. 

In  the  case  of  rural  communes  constituting  a  school 
union  for  themselves,  the  regular  organs  of  administra- 
tion are  charged  with  the  preparation  of  the  budget  and 
the  voting  and  management  of  funds.  In  manorial 
precincts  these  functions  are  exercised  by  the  director. 
In  rural  communes  constituting  separate  school  unions, 
a  school  committee  is  provided  for,  similar  to  the  school 
deputation  in  cities  for  the  management  of  all  school 
matters  except  those  mentioned  above. 

For  composite  school  unions,  the  director  of  the 
union  and  a  school  committee  together  manage  the 
public  school  matters.  This  committee  is  composed  of 
representatives  from  the  members  of  the  union.  The 
union  director  is  appointed  by  the  supervising  authority 
from  among  the  members  of  the  committee.  He  must 
care  for  the  distribution  of  the  sums  each  member  is 
legally  obliged  to  pay  and  must  look  after  their  collection. 

The  teachers  in  primary  schools  are  state  officers, 


272         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

elected  from  among  those  qualified  by  the  local  organs. 
This  organ  is  the  commune  executive  committee  in 
case  the  commune  is  a  separate  school  union.  The 
school  deputation  and  school  commissions  are  entitled 
to  be  heard  as  to  the  choice.  In  other  school  unions, 
the  election  is  as  a  rule  through  the  school  committee. 
The  election  must  be  approved  by  the  supervising  au- 
thority, which  also  makes  the  appointment.  Principals 
and  head  teachers  must  present  special  qualifications 
and  are  appointed  by  the  supervising  authority.  As 
the  provision  in  the  constitution  requiring  parents  to  see 
that  their  children  receive  an  education  equivalent  to 
that  offered  in  the  primary  schools l  has  not  been  em- 
bodied in  a  general  code,  it  is  still  suspended  and  the 
older  provisions  are  in  force,  varying  in  the  different  prov- 
inces. These  quite  generally  impose  a  duty  of  instruct- 
ing the  children  from  the  age  of  six  to  the  age  of  twelve 
or  fourteen  years.  The  instruction  need  not  be  in  the 
public  schools,  but  must  be  equivalent  to  that  there  given, 
and  cover  the  same  subjects.  These  include,  besides  the 
usual  elementary  subjects,  also  religious  instruction  and 
gymnastics,  according  to  the  curriculum  prescribed  by 
the  administrative  authorities.2 
Primary  schools  are  open  to  both  boys  and  girls,  but 

1  Const,  of  Prussia,  1850,  Art.  21. 

2  There  were  in  1906  somewhat  over  six  million  children  of  the  age  for 
wnich  compulsory  education  is  prescribed  and  over  38,000  public  primary 
schools  with  over  100,000  teachers.    Hue  de  Grais,  p.  456,  n.  5. 


PUBLIC   INSTRUCTION  273 

in  the  upper  classes  the  instruction  is,  when  possible, 
to  be  in  separate  divisions. 

Private  instruction  is,  therefore,  not  forbidden,  but 
the  liberal  provision  in  the  constitution  allowing  every- 
one who  possesses  the  necessary  qualifications  to  engage 
in  the  teaching  profession  is  still  suspended.  The  older 
provisions  are  therefore  in  force  which  limit  the  right 
to  conduct  schools  by  making  it  dependent  on  the  need 
for  such  schools.  The  existence  of  the  need  is  to  be 
judged  by  the  district  governments,  from  which  per- 
mission must  be  obtained  for  the  conducting  of  such 
schools.  Private  teachers  must  obtain  permission  to 
teach  from  the  supervising  authority  after  proving  their 
mental  and  moral  qualifications.  They  are  subject  to 
supervision  by  those  authorities.1  Teachers  of  swim- 
ming, gymnastics  or  dancing  are  in  a  special  position, 
inasmuch  as  by  the  provisions  of  the  imperial  industrial 
code,  they  may  be  refused  permission  to  practise  their 
profession  only  if  facts  appear  which  point  to  the  un- 
reliability of  the  applicant.2 

The  administrative  hierarchy  for  educational  matters 
is  subject  to  the  minister  of  education.  For  primary 
education,  his  agents  are  the  church  and  school  depart- 
ments of  the  district  governments.3  These  in  turn 
work  through  special  supervising  organs  called  school 

1  O.  of  Feb.  4,  1908  (Z.  Bl.  V.  V.  1908,  p.  333). 

2  G.  O.  §  35.         3  Instr.  Oct.  23,  1817,  §  18. 
T 


274         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION       . 

inspectors.  There  are  circle  inspectors  for  territory 
including  several  school  unions  and  local  inspectors  for 
single  school  unions.  These  school  inspectors  are  purely 
state  agents  and  subject  to  all  orders  of  the  higher 
authorities.  The  circle  inspectors  are  usually  special 
officers.  But  frequently  the  duties  of  inspector  are  im- 
posed on  the  church  officers,  and  the  local  inspectors 
are  regularly  the  pastors  of  the  community.1  The  func- 
tions of  circle  director,  of  the  circle  committee  and  of 
the  district  committee  in  settling  controversies  arising 
out  of  the  public  obligations  concerning  primary  schools 
are  determined  in  the  law  of  1883  concerning  the  com- 
petence of  administrative  authorities.2 

Besides  the  education  offered  in  the  primary  schools, 
which  is  the  legal  minimum  required  for  all  children, 
intermediate  schools  are  provided  for,  which,  though 
offering  the  same  subjects  as  the  primary  schools,  carry 
the  instruction  farther  and  offer  the  beginnings  of  busi- 
ness or  industrial  education.  Similarly,  there  are  the 
so-called  continuing  schools  (Fortbildungsschulen)  which 
prepare  the  graduates  of  the  primary  schools  for  prac- 
tical work  in  agriculture,  business  or  industry.3 

1  A.  L.  R.,  II,  12,  §§  12-17,  47  and  49. 

2  Zust.  Ges.  §§  45-49.  *  Hue  de  Grais,  p.  462. 


PUBLIC   INSTRUCTION  275 

Secondary  Education 

Secondary  education  was  organized  first  by  church 
endeavor  at  the  time  of  the  Reformation,  when  the 
study  of  the  ancient  classics  constituted  the  programme 
of  all  higher  education.  The  so-called  gymnasia,  or 
classical  secondary  schools,  were  provided  for  as  part 
of  the  scheme  for  state  education  in  the  General  Code  of 
1794,  and  these  classical  schools  remained  the  institu- 
tions for  secondary  education  until  the  beginning  of  the 
nineteenth  century.  Scientific  secondary  schools  then 
began  to  be  developed  and  have  continually  grown  in 
importance  since  then.  To-day  there  are  three  typical 
kinds  of  secondary  schools,  all  comprising  nine  years 
of  study,  beginning  with  the  age  of  nine  years.  These 
institutions  are  the  gymnasia,  the  scientific  gymnasia 
(Realgymnasien)  and  scientific  superior  schools  (Ober- 
realschulen).  The  former  retain  Greek  and  Latin  as 
the  major  part  of  the  curriculum.  The  second  place 
greater  emphasis  on  the  sciences  and  on  modern  lan- 
guages, and  the  latter  exclude  the  study  of  the  classics 
entirely.  There  are  in  addition  secondary  schools  of 
lower  rank  which  offer  only  six  years  of  secondary 
instruction. 

Only  graduates  of  the  regular  gymnasia  can  enter  all 
departments  of  the  universities.  Those  of  the  scientific 
secondary  schools  are  eligible  to  enter  the  departments 


276         PRINCIPLES  OF  PRUSSIAN  ADMINISTRATION 

of  law  and  medicine  and  to  study  modern  languages, 
mathematics  and  the  sciences. 

State  organs  of  supervision  for  the  secondary  schools 
are  the  province  school  commissions  under  the  minister 
of  education.  These  are  the  organs  of  active  school 
administration  and  are  assisted  by  the  examining  boards 
for  the  higher  teaching  positions.  The  province  school 
committees  are  also  supervising  organs  for  the  normal 
schools  established  for  the  training  of  teachers  in  the 
public  schools.  The  teachers  in  the  secondary  schools 
are  appointed  as  a  rule  by  the  province  committee  or 
the  minister  on  the  basis  of  an  examination  given  by 
the  examining  board. 

The  secondary  schools  have  in  the  past  been  open 
only  to  boys,  although  more  recently  girls  are  being 
admitted  on  the  same  conditions.  But  for  girls  special 
schools  have  been  provided,  corresponding  in  general 
scope  to  the  secondary  schools  for  boys  and  supple- 
mented as  are  those  by  normal  schools. 

In  the  field  of  secondary  education,  private  under- 
takings are  permitted  under  the  same  limitations  as  in 
the  case  of  primary  education. 

Higher  Education 

The  higher  training  for  the  professions  is  furnished  in 
Germany  in  the  so-called  high  schools  (Hochschulen). 
These  comprise  universities  and  technical  schools. 


PUBLIC   INSTRUCTION  277 

Universities  were  founded  in  Prussia  early  in  the  six- 
teenth century  as  public  corporations  with  wide  powers 
of  self-government.  The  General  Code  of  1794  regards 
them  as  part  of  the  general  educational  system  of  the 
state  and  calls  them  corporations  with  special  privileges. 
The  universities  lost  their  autonomy,  however,  and  were 
made  dependent  for  their  powers  on  charters  issued  by 
the  administration. 

The  general  powers  of  a  university  are  determined 
by  this  charter,  but  the  execution  of  its  provisions  is 
left  to  faculty  statutes.  State  supervision  is  exercised 
by  an  organ  of  the  minister  called  the  curator,  who  is 
responsible  for  the  management  of  the  finances.  The 
internal  regulation  of  university  affairs  occurs  by  vote 
of  the  full  professors  (Ordentliche  Professoren)  who 
annually  elect  the  rector  and  the  faculty  deans  and  act 
through  a  permanent  committee  called  the  senate. 
Their  jurisdiction  includes  all  general  undertakings  of 
the  university,  the  exercise  of  disciplinary  powers  over 
students,  the  arrangement  of  the  curriculum,  the  con- 
ferring of  degrees,  nominations  for  appointments  to 
full  professorships,  granting  of  permission  to  teach  in 
the  university  without  appointment,  etc.  The  teaching 
force  comprises  various  classes  of  instructors,  varying 
as  to  title,  rank  and  salary.  They  have  the  rights  and 
duties  of  state  officers,  but  cannot  be  transferred  or 
retired  on  a  pension  against  their  will. 


278         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

Students  are  subject  to  the  disciplinary  powers  of  the 
senate,  but  are  otherwise  amenable  to  all  provisions  of 
the  law.  They  may  matriculate  upon  producing  the 
required  certificate  of  graduation  from  a  secondary 
school.  The  ordinary  course  of  study  requires  three 
years,  for  medical  students  four  years,  of  work. 

Besides  the  universities,  there  are  technical  high 
schools  for  engineering,  art,  music,  commerce,  etc., 
which  are  organized  along  similar  lines  as  are  the  uni- 
versities. For  all  these  institutions,  as  for  the  univer- 
sities, the  immediate  superior  instance  is  the  minister 
of  education,  who  exercises  the  state  control  through 
his  curators.  The  appointment  of  full  professors  is 
made  by  the  king  himself,  the  full  professors  of  the 
given  university  having  a  right  of  nomination. 

Care  for  the  Working  Classes 

State  activity  in  the  interests  of  the  working  classes 

expresses  itself  in  Prussia  in  three  different  directions, 

all  regulated  by  imperial  legislation.    The  first  of  these 

is  the  guarantee  of  industrial  freedom,  the  second  are 

'     the  provisions  for  organizations  of  the  laboring  classes, 

/         and  the  third  are  the  provisions  protecting  the  life  and 

health  of  laborers  and  assuring  them  support  in  case  of 

accident  or  sickness. 

Liberty  of  trade  was  not  introduced  in  Prussia  until 


LABOR   REGULATION  279 

early  in  the  nineteenth  century.  In  the  Middle  Ages 
trades  were  restricted  to  the  cities  and  absolutely  con- 
trolled by  the  trade  gilds,  autonomous  corporations  with 
complete  monopoly  powers.  In  the  eighteenth  century 
absolutism  these  corporations  lost  their  autonomy  and 
became  public  corporations  of  the  state,  which  itself 
assumed  the  monopoly  of  granting  trade  rights.  For 
the  individual  workman,  however,  the  situation  was  very 
little  different  from  that  in  the  Middle  Ages,  for  he 
could  not  engage  in  any  trade  without  permission. 

The  acts  of  1810  and  1811  relating  to  trade  taxes 
and  police  control l  established  liberty  of  trade  in  Prussia 
by  abolishing  the  monopoly  principle  and  depriving  the 
gilds  of  their  governmental  powers.  Trades  were  open 
to  all,  except  when  permission  was  specifically  required 
by  law.  This  liberal  legislation  was  extended  in  Prussia 
to  all  parts  of  the  state  in  1845. 2  This  act  regulated 
the  whole  subject  of  trade  and  industry  and,  though 
not  quite  so  liberal  as  the  earlier  enactments,  still  rested 
fundamentally  on  the  principle  of  liberty  of  trade. 

The  North  German  Federation  abolished  the  gild 
restrictions  for  the  whole  of  Germany  in  1868  and  in 
1869  adopted  the  industrial  code,  which,  with  its  subse- 
quent alterations,  embodies  the  law  in  force  to-day.3 

1  Edict  of  Nov.  2, 1810  (G.  S.  1810,  p.  79) ;  Ed.  of  Sept.  7, 1811  (G.  S. 
1811,  p.  253).  2  Act  of  Jan.  17, 1845  (G-  S.  1845,  p.  41). 

3  Gewerbeordnung,  June  21,  1869. 


280         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

This  code  was  framed  on  the  basis  of  the  Prussian  law  of 
1845  and  announced  liberty  of  trade  as  the  general 
principle.  But  a  change  in  the  economic  and  political 
theories  that  had  developed  meanwhile  in  Germany  led 
to  an  increase  in  the  number  of  exceptions  for  which 
permission  was  required  and  to  an  expansion  of  the 
police  powers  respecting  trades  and  industry. 

The  imperial  industrial  code  deals  with  all  economic 
activities  except  the  production  of  raw  materials  and  the 
practice  of  the  higher  professions.  It  is  an  exclusive 
law  as  regards  limitations  on  the  right  to  begin  a  trade 
or  other  industrial  activity  and  as  regards  the  power  of 
ordering  a  discontinuance  of  the  same.  That  is  to  say, 
industrial  activity  may  be  freely  entered  upon  by  any 
individual  except  so  far  as  limitations  are  imposed  or  per- 
mitted by  the  imperial  law  itself.1  So  also  as  regards  the 
right  to  continue  in  an  industrial  undertaking  or  a  trade, 
that  may  not  be  denied  by  either  administrative  or  judi- 
cial action,  except  as  permitted  by  provisions  of  the  im- 
perial code.2  State  action  is  therefore  excluded  in  both 
these  regards.  But  limitations  and  regulations  concern- 
ing the  manner  of  engaging  in  trades  and  industrial 
pursuits  are  not  exclusively  reserved  to  the  empire,  but 
may  be  imposed  by  the  states  as  well. 

The  various  restrictions  placed  on  the  general  liberty 
of  trade  in  the  industrial  code  and  those  imposed  by 
1 G.  O.  §  i.  2  ibid.  §  143. 


LABOR  REGULATION  281 

the  states  within  the  jurisdiction  left  them  by  the 
code  are  police  measures  intended  for  the  protection 
of  the  public,  and  do  not  fall  under  the  subject  of 
this  chapter.  But  the  industrial  code  contains  other 
provisions  besides  those  establishing  trade  liberty, 
which  are  of  great  importance  to  the  workingmen. 
These  are  the  sections  of  Title  vi  of  the  imperial  code 
regarding  workmen's  organizations,  and  those  of  Title 
vii  regarding  laborers  and  their  protection  in  their 
occupations. 

Title  vi  of  the  imperial  code  treats  of  gilds  (Innun- 
gen)  and  tradesmen's  chambers  (Handwerkskammern) . 
Gilds,  as  has  been  seen,  were  not  wholly  abolished, 
either  in  the  absolute  state  nor  with  the  changes  to  the 
constitutional  state.  In  the  former,  they  lost  their 
autonomy ;  in  the  latter,  their  governmental  powers,  and 
continued  for  thirty  years  as  mere  private  societies.  It 
soon  appeared,  however,  that  they  were  powerless  in 
that  form  to  protect  the  interests  of  the  workingmen  and 
consequently  larger  powers  were  given  them  by  later 
legislation,  which  clothed  them  with  the  character  of 
public  corporations  and  with  powers  of  self-adminis- 
tration, subject  to  state  supervision.  These  regulations 
were  revised  and  embodied  in  their  present  form  in  the 
imperial  code  by  law  of  July  26,  1897. 

Gilds  may  be  formed  by  individuals  who  pursue  in- 
dustrial callings,  the  purposes  of  the  gild  being  to  culti- 


282         PRINCIPLES   OF  PRUSSIAN   ADMINISTRATION 

vate  the  feeling  of  solidarity  among  its  members  and 
good  relations  between  masters  and  assistants,  to  care 
for  lodging  houses  and  employment  bureaus,  to  regulate 
in  detail  the  relations  of  apprentices  and  provide  for  their 
mental,  technical  and  moral  training,  and  to  settle 
certain  classes  of  controversies  between  members  of  a 
gild  and  their  apprentices.  Other  undertakings  of  com- 
mon benefit  may  be  entered  upon  by  the  gilds,  such  as 
the  establishment  of  sick  relief  treasuries,  of  technical 
schools,  the  requiring  of  examinations  for  masters  and 
assistants,  providing  arbitration  courts  for  disputes 
between  members  and  their  assistants,  etc. 

Gilds  shall  as  a  rule  not  cover  more  territory  than 
the  higher  administrative  division.  The  purpose  of  the 
gild,  the  form  of  its  government  and  the  rights  of  its 
members  are  to  be  regulated  in  the  statute  or  charter, 
which  must  determine  the  name,  location  and  extent  of 
the  gild,  the  kinds  of  industrial  pursuits  included  therein, 
the  admission,  resignation  and  exclusion  of  members,  the 
rights  and  duties  of  members  and  the  manner  of  col- 
lecting dues,  the  constitution  of  the  executive  committee, 
the  nature  and  powers  of  the  general  assembly,  etc. 
The  charter  must  be  approved  by  the  higher  adminis- 
trative authority  of  the  district  in  which  the  gild  is 
located  and  can  be  refused  only  if  the  charter  is  wanting 
in  some  particular  prescribed  by  law  or  if  in  the  same 
territory  a  gild  already  exists  for  the  same  industries. 


LABOR   REGULATION  283 

The  gilds  are  corporations  with  limited  liability. 
Their  active  membership  can  include  only  those  who 
independently  exercise  in  the  district  an  industrial 
calling  of  the  kind  for  which  the  gild  is  founded,  those 
who  occupy  a  position  as  master  mechanic  in  a  factory, 
those  who  have  formerly  belonged  to  either  of  the  two 
mentioned  classes  and  agricultural  or  industrial  laborers. 
Membership  may  by  the  charter  be  made  dependent  on 
an  examination,  but  no  one  may  be  refused  admission 
who  fulfils  the  legal  requirements.  Resignation  may  be 
effected  at  the  close  of  each  fiscal  year  and  involves  the 
loss  of  all  claims  on  property  or  capital  of  the  gild. 

The  gilds  may  impose  dues  for  all  their  legal  pur- 
poses and  may  compel  their  payment  by  the  same  means 
available  for  the  collection  of  taxes.  Controversies  re- 
garding dues  are  brought  before  the  supervising  organs 
with  protest  to  the  higher  authorities.  A  strict  control 
of  the  finances  is  to  be  exercised  by  the  administrative 
authorities.  The  general  organ  for  control  of  finances, 
as  well  as  other  matters,  is  the  subordinate  administra- 
tive authority  in  the  district,  which  has  wide  powers  of 
supervision. 

Gilds  may  be  dissolved  if  their  charters  are  found  to 
be  contrary  to  law,  if  the  gild  persistently  fails  to  perform 
its  legal  ends  or  if  it  otherwise  acts  in  an  illegal  manner 
and  furthermore,  if  the  number  of  members  diminishes 
to  such  an  extent  as  to  make  it  seem  incapable  of  ful- 


284         PRINCIPLES   OF  PRUSSIAN   ADMINISTRATION 

filling  its  functions.  In  all  of  these  cases,  the  higher  ad- 
ministrative authority  may  order  the  dissolution  of  the 
gild.  Bankruptcy  proceedings  moreover  operate  to  dis- 
solve a  gild. 

Not  only  are  voluntary  gilds  of  all  kinds  fostered  by 
law,  but  compulsory  gilds  may  also  be  constituted.1 
They  may  be  established  upon  request  by  administrative 
order  for  a  certain  district  to  include  all  workmen  in  a 
given  trade.  Compulsory  membership  may  be  imposed 
when  a  majority  of  the  workmen  in  the  district  desire 
it  and  there  are  sufficient  workmen  of  the  trade  in  the 
district  to  constitute  a  gild  strong  enough  to  fulfil  its 
purposes.  Only  such  workmen  can  be  compelled  to  join 
as  are  near  enough  to  the  seat  of  the  gild  to  participate 
in  its  activities  and  to  enjoy  its  benefits.  In  other 
respects  all  the  provisions  of  the  law  relating  to  volun- 
tary gilds  are  applicable  to  these  compulsory  gilds,  with 
such  minor  modifications  as  were  deemed  necessary  in 
view  of  the  involuntary  elements  involved. 

Joint  gild  committees  may  be  constituted,  composed  of 
representatives  of  two  or  more  gilds,  subject  to  the  same 
controlling  authority.  Their  object  is  to  further  the 
common  interests  of  the  gilds  represented,  and  they  may 
be  endowed  with  rights  and  duties  of  the  gilds  which  they 
represent.  Their  nature  is  determined  by  charter,  framed 
by  the  gilds  interested  and  approved  by  the  superior 

1  G.  O.  §§   100-102. 


LABOR  REGULATION  285 

administrative  authority.  Gilds  not  under  the  same 
controlling  authority  may  unite  to  form  joint  gilds 
(Innungsverbande) .  They  accomplish  the  same  purposes 
for  the  larger  districts  that  the  single  gilds  do  for  the 
smaller  districts,  and  their  constitution  and  powers  are 
similar  to  those  of  the  latter.1 

Another  form  of  organization  for  the  benefit  of  the 
handicrafts  are  the  tradesmen's  chambers  (Handwerks- 
kammern.)2  They  are  established  by  order  of  the 
central  state  administrative  authority  for  a  territory 
designated  by  the  same.  The  number  of  members  is 
determined  in  the  charters.  They  are  chosen  partly  by 
the  workmen  gilds  from  among  their  own  number,  partly 
by  workmen's  associations.  Only  such  persons  are 
eligible  to  membership  as  are  qualified  to  service  as  lay 
judges  (Schoffen),  are  thirty  years  of  age,  have  followed 
a  handicraft  for  at  least  three  years  as  independent  work- 
men within  the  district,  and  are  authorized  to  train 
apprentices.  The  members  of  the  chamber  are  chosen 
for  six  years,  one-half  going  out  of  office  every  three 
years.  The  chambers  may  increase  their  membership 
up  to  20  per  cent  by  the  election  of  experts  and  invite 
others  to  an  advisory  participation  in  the  meetings. 

The  particular  functions  of  the  tradesmen's  chambers 
are  to  regulate  the  conditions  of  apprenticeship  and  to 
supervise  the  fulfilment  of  the  regulations  passed  there- 
1  Ibid.  §  104,  a-n.  2  Gewerbeordnung,  Title  in. 


286         PRINCIPLES   OF  PRUSSIAN   ADMINISTRATION 

for,  to  give  information  and  advisory  opinions  concerning 
the  handicrafts  to  the  state  and  local  administrative 
authorities,  to  consider  petitions  and  proposals  relating 
to  the  trades  and  report  the  same  to  the  authorities,  to 
constitute  committees  for  the  examination  of  assistants 
and  to  raise  a  voice  in  all  matters  affecting  the  interests 
of  trades  and  handicrafts. 

Orders  of  the  tradesmen's  chambers  within  their  juris- 
diction must  be  obeyed  by  the  gild  committees  and  the 
regulations  of  the  latter  concerning  apprentices  must  be 
in  accordance  with  the  measures  passed  by  the  chambers. 
The  chambers  themselves  elect  an  executive  committee 
from  among  their  own  number  which  acts  in  matters  not 
expressly  reserved  to  the  chamber  as  a  whole.  State  su- 
pervision is  directly  exercised  by  an  agent  of  the  con- 
trolling administrative  authority.  This  agent  must  be 
asked  to  attend  every  meeting  of  the  chamber,  its  execu- 
tive and  other  committees,  and  must  at  all  times  be  heard 
upon  demand.  He  is  empowered  to  inspect  all  papers  of 
the  organization  and  to  require  meetings  for  the  consid- 
eration of  questions  submitted  by  him,  and  may  suspend 
measures  of  the  chamber  or  its  agents  which  he  regards 
as  ultra  vires. 

A  special  assistants  or  associates  committee  (Gesellen- 
ausschuss)  must  be  chosen  by  each  chamber  to  cooperate 
in  measures  affecting  apprentices  and  assistants,  as  in 
the  case  of  the  gilds. 


LABOR   REGULATION  287 

The  costs  of  the  tradesmen's  chambers  are  borne  by  the 
communes  within  the  district  in  quotas  determined  by 
the  higher  administrative  authorities.  The  communes 
in  turn  may  collect  their  quotas  from  the  handicrafts 
in  a  manner  and  to  an  extent  determined  by  the  higher 
administrative  authorities.  By  order  of  the  central 
state  authorities,  the  costs  may  be  imposed  upon  the 
higher  public  corporations  instead  of  on  the  communes. 

The  charter  of  the  tradesmen's  chambers  is  issued  by 
the  central  administrative  authority  and  must  contain 
provisions  similar  to  those  required  for  the  charters 
of  the  gilds.  In  general,  the  provisions  as  regards  the 
management  of  the  chambers  are  like  those  for  the  gilds, 
but  the  former  are  not  corporations  as  are  the  latter, 
though  they  may  acquire  property,  enter  into  contracts, 
sue  and  be  sued,  and  may  exercise  certain  governmental 
powers. 

Tradesmen's  chambers  which  persistently  fail  in  the 
performance  of  their  duty,  after  exhortations  from  the 
higher  administrative  authority  as  supervising  organ, 
or  which  act  unlawfully  to  the  detriment  of  the  general 
welfare,  may  be  dissolved  by  order  of  the  supervising 
authority.  This  order  may  be  protested  to  the  central 
authorities,  whose  decision  is  final. 

The  special  protection  provided  by  law  for  workmen 
is  of  two  general  kinds,  preventive  and  remedial.  Pre- 
ventive measures  are  contained  in  Title  vii  of  the  indus- 


288         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

trial  code  and  comprise  restrictions  on  the  freedom 
of  contract  in  the  interests  of  the  workmen.  The 
remedial  measures  are  contained  in  the  imperial  insurance 
code,  which  prescribes  the  rules  for  compulsory  insurance 
of  workmen  against  accident,  sickness  and  death. 

The  industrial  code,  after  declaring  that  the  freedom 
of  contract  between  employers  and  laborers  is  subject 
to  no  other  limitations  than  those  contained  in  that  code, 
enumerates  the  restrictions  passed  for  the  benefit  of  the 
laborers.  So  labor  may  not  be  required  on  Sundays 
and  holidays  as  a  general  rule.  A  minimum  of  twenty- 
four  hours'  rest  is  prescribed  on  Sundays  and  on  single 
holidays.  For  two  or  three  consecutive  holidays, 
thirty-six  and  forty-eight  hours,  respectively,  are  re- 
quired. The  executive  of  each  state  determines  what 
are  holidays  in  that  state,  but  Christmas,  Easter  and 
Pentecost  are  fixed  for  all  of  Germany.  Exceptions  to 
the  general  rule  forbidding  the  requirement  of  labor 
on  Sundays  and  holidays  are  permitted  in  cases  of  neces- 
sity or  in  the  interests  of  the  public,  and  for  certain  other 
industries  the  Bundesrat  may  constitute  exceptions 
when  deemed  desirable.  In  still  other  cases,  the  higher 
state  administrative  organs  are  authorized  to  permit 
exceptions  to  the  rule. 

The  employment  of  minors  as  laborers  is  subject  to 
special  requirements  of  an  official  work-book  showing 
name,  place  and  date  of  birth  of  employee,  and  name 


LABOR  REGULATION  289 

and  last  residence  of  his  legal  representative  and  his 
signature.  Every  employer  must  enter  in  this  book  the 
time  of  beginning  the  service,  the  kind  of  labor  performed 
and  time  of  termination. 

Workmen  may,  on  terminating  a  service,  require  a 
certificate  as  to  the  nature  and  length  of  their  service 
and  also,  if  desired,  as  to  their  conduct  and  efficiency. 
The  Bundesrat  may  require  for  special  industries  the 
keeping  of  wage-books,  showing  the  terms  of  the  con- 
tract under  which  the  laborer  works.  If  the  Bundesrat 
does  not  exercise  this  right,  the  state  authorities  may  do  so. 
Wages  must  be  paid  in  cash  in  imperial  currency.  Goods 
may  not  be  credited  to  workmen,  except  that  the  necessi- 
ties of  life  may  be  furnished  on  credit  and  a  reasonable 
price  therefor  be  deducted  from  the  wages.  Contracts 
in  violation  of  these  provisions  are  invalid.  Nor  may 
wages  to  an  amount  larger  than  a  week's  payment 
be  withheld  as  security  for  damages  resulting  from 
breach  of  contract.  The  local  administrative  corpora- 
tions may  by  statute  require  payment  of  wages  at  regular 
intervals  of  from  one  week  to  one  month.  Employers  are 
bound  to  grant  minors  in  their  employ  sufficient  time  for 
the  attendance  at  the  technical  schools  provided  for 
such  persons,  and  the  local  authorities  may  make  the  at- 
tendance at  such  schools  compulsory  for  minor  work- 
men. 

For  the  protection  of  the  life  and  health  of  the  work- 


2QO         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

men,  employers  are  obliged  to  conduct  their  undertakings 
in  a  way  to  insure  a*  minimum  of  danger.  In  particular, 
sufficient  light  and  air  must  be  provided,  and  dust,  gases 
and  waste  be  properly  disposed  of.  Danger  from 
machines  and  from  fires  are  also  especially  to  be  provided 
against.  Not  only  must  the  employer  take  the  necessary 
measures  to  protect  the  life  and  health  of  the  workmen 
in  his  employ,  but  must  also  provide  for  the  protection 
of  decency  and  good  morals.  The  separation  of  the  sexes 
whenever  possible,  the  furnishing  of  separate  dressing 
rooms,  etc.,  are  all  requirements  of  the  law.  Minors 
under  eighteen  years  of  age  must  be  furnished  special 
safeguards  for  health  and  morals. 

The  issuing  of  orders  calculated  to  enforce  the  above 
provisions  of  the  law  in  the  different  industrial  plants  is 
the  duty  of  the  police  authorities  for  the  district.  They 
may  also  require  the  workmen  to  be  furnished  with 
special  rooms  for  meals,  to  be  heated  in  cold  weather. 
The  employers  may  protest  against  such  police  orders  be- 
fore the  higher  authorities,  with  final  appeal  to  the  cen- 
tral authorities.  General  regulations  intended  to  insure 
the  protection  required  by  the  law  may  be  issued  by 
the  Bundesrat,  or,  if  it  fails  to  do  so,  then  by  the  cen- 
tral or  by  the  lower  police  authorities  of  the  state.  In 
the  latter  case,  the  directors  of  the  cooperative  labor 
associations  are  entitled  to  be  heard. 
>  Employments  which,  by  the  excessive  length  of  the 


LABOR   REGULATION  2QI 

working  day,  may  prove  detrimental  to  the  health  of  the 
workmen,  are  subject  to  regulation  by  the  Bundesrat 
or  the  state  authorities  as  regards  the  beginning,  duration 
and  close  of  the  working  day.  Special  police  orders  may 
be  issued  for  single  establishments,  so  far  as  not  dealt 
with  by  general  regulations  as  provided  above. 

Special  provisions  exist  in  the  law  as  regards  associates 
and  assistants,  regulating  the  contract  relations  between 
them  and  their  employers.  The  same  is  true  for  appren- 
tices, who  may  be  engaged  only  by  persons  fulfilling 
certain  legal  requirements.  The  apprentices  are  pro- 
tected against  overwork  and  are  insured  opportunities 
for  education  in  their  field  of  work.  They  are  entitled  to 
a  certificate  at  the  termination  of  their  apprenticeship. 

For  establishments  employing  more  than  ten  workmen, 
special  regulations  are  contained  in  the  law.  Children 
under  thirteen  years  may  not  be  employed  at  all ;  those 
over  thirteen  years,  only  if  no  longer  of  school  age. 
Children  under  fourteen  years  of  age  may  not  be  em- 
ployed more  than  six  hours  a  day,  those  under  sixteen 
not  more  than  ten  hours.  In  certain  industries,  children 
may  not  be  employed  at  all.  The  law  further  determines 
the  hours  of  beginning  and  ending  work  and  the  inter- 
missions to  be  granted. 

For  female  workers,  night  employment  is  forbidden. 
A  minimum  of  eleven  hours'  rest  is  required  and  eight 
weeks'  discontinuance  at  childbirth.  Certain  industries 


2Q  2         PRINCIPLES   OF   PRUSSIAN   ADMINISTRATION 

are  entirely  forbidden  for  female  workers.  For  both 
children  and  female  employees,  it  is  forbidden  to  give 
them  work  to  be  done  at  home  after  a  regular  working 
day.  The  employment  of  children  or  female  workers 
must  be  notified  to  the  police,  indicating  the  conditions 
of  the  employment.  Notices  must  be  posted  conspicu- 
ously in  the  place  of  employment,  showing  the  hours  of 
beginning  and  ending  work,  the  intermissions,  etc. 
The  Bundesrat  is  given  authority  to  issue  regulations  for 
particular  branches  of  industries,  forbidding  the  em- 
ployment of  children  or  female  workers  or  imposing 
certain  conditions  on  such  employment.  In  the  exercise 
of  this  power,  a  great  number  of  restrictions  have  been 
placed  on  the  employment  of  children  and  female 
workers  in  industries  presenting  special  dangers  to  life 
or  health  or  morals.  On  the  other  hand,  certain  excep- 
tions to  the  general  requirements  are  also  permitted  and 
have  been  established  by  the  same  power. 

The  state  supervision  over  the  execution  of  the  legal 
requirements  enumerated  above  is  intrusted  to  special 
officers  clothed  with  the  ordinary  powers  of  the  police 
authorities.  They  must  make  annual  reports  which 
are  to  be  submitted  to  the  Bundesrat  and  Reichstag. 

Special  industrial  courts  are  provided  for  by  imperial 
law,  for  the  settlement  of  controversies  concerning 
employment  in  industrial  undertakings.  They  are  con- 
stituted by  act  of  the  local  governmental  corporations 


LABOR   REGULATION  293 

or  by  order  of  the  central  authorities  if  requested  thereto. 
For  communes  of  more  than  twenty  thousand  inhabitants 
such  courts  are  required.  They  are  composed  of  a  chair- 
man and  at  least  four  other  members.  The  chairman 
may  not  be  either  employer  or  employee,  but  the  members 
must  be  chosen  half  and  half  from  each  class.  The 
procedure  is  similar  to  that  in  the  regular  lower  courts,  but 
professional  counsel  is  forbidden.  Aside  from  decisions, 
these  courts  may  render  advisory  opinions  and  act  as 
arbitrators  in  case  of  disputes  as  to  the  continuance  or 
renewal  of  work. 

So  far  there  have  been  considered  the  preventive 
measures  intended  for  the  protection  of  the  workmen. 
There  remain  to  be  mentioned  the  remedial  measures 
provided  by  law  for  damages  which  the  workmen  may 
suffer  in  their  employment.  They  are  contained  in 
the  new  imperial  insurance  code,1  which  deals  with  three 
kinds  of  compulsory  workmen's  insurance.  The  first 
is  insurance  against  sickness;  the  second,  insurance 
against  accident  in  the  employment;  and  the  third, 
insurance  in  case  of  permanent  incapacity  and  death. 
The  imperial  insurance  code  supersedes  all  prior  laws 
concerning  the  insurance  of  workmen. 

The  bearers  of  the  insurance  are  in  general  the  sick 
relief  treasuries  (Krankenkassen)  for  insurance  in  case 
of  sickness,  the  cooperative  associations  (Berufsgenoss- 
1  Reichsversicherungsordnung,  May  31,  1911. 


294         PRINCIPLES   OF  PRUSSIAN  ADMINISTRATION 

enschaften)  for  accident  insurance,  and  the  insurance 
istitutes  (Versicherungsanstalten)  for  invalid  and  life 
insurance. 

The  public  insurance  authorities  comprise  the  state 
inferior  insurance  offices,  the  state  superior  insurance 
offices  and  the  imperial  insurance  office.  The  inferior 
insurance  offices  are  constituted  by  special  branches  of 
the  lower  administrative  authorities,  either  for  their 
districts  or  for  several  districts.  The  head  of  the  admin- 
istrative authority  is  director  of  the  insurance  office. 
As  associates  in  the  cases  designated  by  law,  he  receives 
at  least  six  representatives  of  employers  and  of  the 
insured.  These  representatives  are  chosen  by  the  direc- 
tors of  the  sick  relief  treasuries,  serve  without  pay  and 
are  obliged  to  accept  the  office. 

Within  each  inferior  insurance  office,  special  commit- 
tees are  formed  for  the  two  kinds  of  proceedings  pre- 
scribed by  the  law.  Each  committee  has  the  director  of 
the  insurance  office  as  chairman,  and  two  representa- 
tives —  one  of  the  employers,  the  other  of  the  insured 
—  as  members.  All  costs  of  the  insurance  office  are 
borne  by  the  state,  which  may  impose  them  on  its  local 
corporations. 

The  superior  insurance  offices  act  as  appellate  and 
supervising  organs.  They  may  be  attached  to  existing 
state  or  imperial  offices  or  be  constituted  as  independent 
organs,  as  the  supreme  administrative  authority  may 


LABOR   REGULATION  295 

provide.  As  a  rule,  the  territorial  jurisdiction  is  to 
coincide  with  that  of  the  higher  administrative  authori- 
ties. They  comprise  members  and  associates.  The 
members  consist  of  officials  appointed  for  life,  one  of 
them  being  appointed  director.  The  associates,  normally 
forty  in  number,  consist  one-half  of  employers  and  one- 
half  of  insured.  The  superior  offices  constitute  special 
chambers  for  the  proceedings  prescribed  by  law. 

Supervision  over  the  superior  insurance  offices  is  exer- 
cised by  the  highest  administrative  authority,  which 
must  provide  suitable  quarters  and  adequate  assistance. 

The  imperial  insurance  office  in  Berlin  constitutes  the 
highest  authority  in  matters  of  workmen's  insurance. 
It  comprises  permanent  and  temporary  members.  The 
former  are  appointed  for  life  by  the  emperor  on  nomina- 
tion of  the  Bundesrat.  He  designates  the  president  in  the 
same  way.  He  appoints  the  directors  and  senate  presi- 
dents while  the  chancellor  appoints  the  other  officers. 

There  are  thirty-two  temporary  members,  eight  chosen 
by  the  Bundesrat,  twelve  by  employers  and  twelve  by  the 
insured.  Six  of  the  eight  members  chosen  by  the  Bundes- 
rat must  be  members  of  that  body.  The  imperial  office 
is  divided  into  senates  for  the  same  purposes  as  the 
committees  in  the  inferior  officers  and  the  chambers  in 
the  superior  offices.  The  costs  of  the  office  are  borne  by 
the  Empire. 

The    insurance    against    sickness    covers    workmen, 


296         PRINCIPLES   OF  PRUSSIAN   ADMINISTRATION 

associates,  assistants  and  apprentices,  servants,  masters, 
mechanics  or  superintendents,  actors,  members  of 
orchestras,  teachers  and  mariners,  provided  that  they 
work  for  compensation,  except  in  the  case  of  appren- 
tices. The  requirement  of  insurance  does  not  extend  to 
employees  of  the  Empire,  the  states,  or  its  governmental 
corporations,  if  they  have  claims  against  their  employers 
in  case  of  sickness.  The  same  is  true  for  teachers  in 
public  schools  or  institutions.  Certain  other  exceptions 
to  the  general  obligation  of  insurance  are  also  consti- 
tuted or  permitted  by  the  law. 

The  right  to  insurance  extends  to  certain  classes  not 
subject  to  the  legal  obligation  of  insurance.  The  amount 
of  the  insurance  to  be  rendered  by  the  insurance  treasuries 
is  determined  by  law  according  to  the  average  wages 
of  the  class  of  workmen  insured.  The  assistance  rendered 
is  either  in  the  form  of  medical  care  or  of  money  amount- 
ing to  half  of  the  average  wage,  for  each  day  of  incapacity. 
Such  assistance  terminates  at  the  latest  twenty-six 
weeks  after  beginning.  This  period  may  be  extended  to 
the  term  of  a  year  by  act  of  the  treasury,  and  special 
convalescent  relief  may  be  afforded  for  a  year  after 
termination  of  the  sick  relief.  The  amount  of  money 
paid  may  also  be  increased  by  the  treasury. 

The  law  determines  in  detail  the  organization  and 
powers  of  the  sick  relief  treasuries,  which  are  under 
the  supervision  of  the  insurance  offices. 


LABOR  REGULATION  2Q7 

The  funds  for  the  sick  relief  are  to  be  collected  from 
employers  and  from  the  insured,  two-thirds  from  the 
latter  and  one-third  from  the  former.  The  treasury 
may  classify  the  contributions  to  be  paid  according  to 
the  character  of  the  employments.  They  are  to  be 
reckoned  in  percentages  of  the  wages  and  of  an  amount 
just  sufficient  to  cover  the  legal  expenses  of  the  treasury. 
Normally,  the  contributions  are  not  expected  to  exceed 
4j^  per  cent  of  the  average  wage. 

The  contributions  must  be  paid  in  regular  instalments 
at  least  once  a  month,  and  the  employer  is  to  subtract 
the  contributions  of  his  employees  from  the  wages. 

Accident  insurance  is  required  for  nearly  all  branches 
of  industry  as  enumerated  in  classes  in  the  imperial 
law.  It  extends  to  all  workmen,  assistants,  associates 
and  apprentices,  as  well  as  to  higher  officials  whose 
compensation  does  not  exceed  five  thousand  marks  a 
year.  The  amount  paid  is  the  equivalent  of  the  damage 
caused  by  the  accident;  it  includes  medical  treatment 
and  a  pension  beginning  with  the  fourteenth  week 
after  the  accident.  The  pension  amounts  to  two-thirds 
of  the  wages  when  complete  incapacity  results,  but  the 
amount  may  be  varied  by  the  association. 

The  cooperative  associations  which  are  the  bearers  of 
the  insurance  comprise  the  employers  in  the  specified 
undertakings.  These  associations  manage  their  internal 
concerns  according  to  a  constitution  adopted  by  the  asso- 


298         PRINCIPLES   OF   PRUSSIAN   ADMINISTRATION 

ciations  and  approved  by  the  imperial  insurance  office. 
It  comprises  an  executive  committee  elected  by  the 
association  for  the  administration  of  its  affairs.  The 
association  classifies  its  industries  according  to  the  risk, 
which  is  determinative  for  the  contributions  to  be  paid. 

The  means  for  the  payment  of  the  insurance  are 
collected  by  membership  dues  from  the  employers, 
according  to  the  wages  paid  in  their  establishments  and 
the  risk  involved  in  their  industry.  The  associations 
issue  regulations  for  the  prevention  of  accidents  in  the 
pursuits  engaged  in  by  their  members.  Special  regula- 
tions exist  for  accident  insurance  for  agricultural  laborers 
and  for  mariners.  The  supervising  organ  is  the  imperial 
insurance  office. 

The  third  form  of  insurance  provided  for  in  the  im- 
perial code  is  that  in  case  of  invalidism  or  death.  This 
extends  to  persons  over  sixteen  years  of  age  of  the  same 
classes  subject  to  insurance  against  sickness.  The  com- 
pensation granted  includes  invalid  and  old  age  pensions, 
as  well  as  pensions  for  dependants  in  case  of  death. 

The  bearers  of  the  insurance  are  insurance  institutes 
established  by  the  states.  They  are  organized  according 
to  the  laws  of  the  states,  but  must  be  approved  by  the 
Bundesrat.  There  is  an  executive  committee  composed 
of  officials  appointed  by  the  public  authorities,  of  repre- 
sentatives of  employers  and  insured  in  equal  numbers. 
Each  institute  has  a  special  committee  for  electing  the 


LABOR   REGULATION  2QQ 

non-official  members  of  the  executive  committee,  for 
preparing  the  budget  and  the  annual  report  and  chang- 
ing the  constitution. 

The  funds  for  the  insurance  are  paid  partly  by  the 
Empire,  partly  by  the  employers  and  partly  by  the  insured. 
The  employers  and  the  insured  pay  weekly  contributions 
in  equal  parts  and  the  Empire  furnishes  annual  bonuses 
for  all  moneys  actually  paid  by  the  institutes.  The 
amount  of  weekly  contributions  is  determined  by  the 
Bundesrat  for  ten  years  in  advance. 

The  employer  pays  each  week  his  share  and  that 
of  his  employees  and  retains  the  latter  on  payment  of 
the  wages.  Or  the  employee  himself  may  pay  and 
then  recover  from  the  employer  the  amount  due.  The 
insured  may  get  a  claim  to  higher  returns  by  volun- 
tarily paying  larger  contributions  than  those  required 
by  law. 

The  amount  paid  to  the  insured  or  his  dependants 
varies  according  to  the  amount  of  contributions  paid, 
beginning  with  a  certain  minimum,  plus  the  imperial 
bonus. 


INDEX 


Abdication  of  Emperor  Francis  II,  59. 
Act, 

of  Margrave,  18. 

of  Oct.,  1807,  40. 

of  Nov.  19,  1808  (City  Gov't),  40. 

of  Dec.  26,  1808,  42. 

of  Oct.  27,  1810,  44. 

of  1811,  44. 

of  April  30,  1815,  47. 

of  1817  (decree),  48. 

of  1808  (Municipal  Gov't),  50. 

of  1850  (Commune),  51. 

of  May  30,  1853,  51. 

of  1872  (Circle  Gov't),  55. 

of  June  29,  1875,  56. 

of  1891  (Rural  Commune),  58. 

circle  government,  106, 107,  no,  113, 
123. 

general  administration,  106. 

of  1815  (division  of  state),  no. 

city  government,  128,  129,  144,  145. 

of  1808  (City  Gov't),   128. 

of    1831,    1853,    1856,    1897     (City 
Gov't),  129, 144. 

of  1858  (Hannoverian  City  Gov't), 
145- 

confirmation  and  authentication,  167. 

of  divestiture,  166,  167. 

of  investiture,  166. 

See  also  Law. 
Adjudication,  171,  172. 
Administration, 

of  Frederick  William  I,  28,  29. 

imperial,  64. 

state,  65. 

expenses  of,  141,  142. 

three  groups  of,  152. 
Administrative  courts,  185. 
Agriculture,  71. 
Albrecht  Achilles,  18. 


Albrecht  the  Bear,  13,  14. 
Aldermen,  138. 
Alliance,  60,  61. 
Altenstein-Dohna  Ministry,  41. 
Amter,  149. 
Amtkammer,  25. 
Amtmann,  16. 
Amtsausschuss,  112,  124. 
Amtsbezirke,  55,  123. 
Amtsvorsteher,  124. 
Appellate  court,  183. 
Apprentices,  291. 
Army,  33,  52. 
Assembly, 

provincial,  47,  48. 

confederate,  60. 

commune,  147,  148. 

union,  151. 

limitation  of,  232. 

Associations,  political,  232,  233,  234. 
Ausfiihrungsverordnungen,  156, 157. 
Austria,  21. 

friction  with  Prussia,  60. 
Authorities, 

central,  67. 

subordinate,  80. 
Autonomy,  33,  40. 
Awards,  181. 

B 

Bailiwicks,  15. 
Ballots,  secret,  145. 
Berlin,  81. 

administration  of,  85. 

duties  of,  93. 

district  functions,  99. 

organization  of,  104. 

church  relations,  105. 

as  separate  circle,  112. 

special  authorities,  122. 

police  organism  of,  141. 

special  union  for,  151. 


301 


302 


INDEX 


Berlin  (continued}, 

special  disciplinary  court  of,  213. 

relief  union,  261. 
Berufsgenossenschaften,  294. 
Bescheid,  181. 
Beschlussbehorde,  173. 
Beschlussverfahren,  172. 
Beschwerde,  192. 
Beyme,  39. 

Bezirksausschuss,  100,  102. 
Brandenburg,  14, 17,  18,  20,  21,  23,  26, 

34,  55,  57,  104. 
Breslau,  relief  union,  261. 
Building,  255-258. 
Bundesamt  fiir  Heimatwesen,  265. 
Bundesrat,  63. 

power  of,  65,  66. 

on  infection,  247. 

on  industries,  292. 
Biirgermeistereien,  149. 
Biirgerrecht,  131. 
Burgervorsteher,  145. 
Burial,  253. 


Cantons,  28. 

Catholic  sees,  18. 

Cattle  diseases,  252. 

Cemeteries,  253. 

Central  government,  20,  21. 

Centralization,  25,  26. 

Centre  of  authority,  26. 

Chambers,  war  and  domain,  31,  42. 

of  Accounts,  78. 
Chancellor  of  state,  47. 
Church,  as  landowner,  15,  16. 
Circle, 

management  of,  24,  25. 

government  act,  42,  43,  55,  56. 

changed  to  subprefectures,  44. 

government  of,  49. 

acts,  57. 

representations  of,  87. 

taxes,  96. 

divisions  of  districts,  105,  106. 

city,  no,  in. 

as  corporations,  112,  113. 
Circle  Assembly,  114-116. 

taxes,  120,  121. 

dissolution  of,  122. 


Circle  Committee, 

functions,  107. 

members,  108. 

as  court,  109,  182. 

executive  board  takes  place  of,  no. 

Posen  appointments,  112. 
Circle  Corporation,  87. 

powers  of,  114. 

expenses  of,  118,  119. 

taxes,  118,  119,  120,  121. 
Circle  diet,  49. 
Circle  director, 

jurisdiction  of,  32. 

appointment  and  functions  of,  106, 
107. 

duties,  1 1 8. 

powers,  121. 

police  authority  of,  161. 
Cities, 

needed  reform  in,  32,  33. 

government  of,  128. 

creation  of,  129. 

changed,  130. 
Citizenship  (City  Commune),  131, 132. 

conferred,  209. 
City  Committee,  in. 
City  Communes, 

laws  regarding,  128,  129. 

citizenship,  131,  132. 

rights  and  powers  of,  132. 

school  management  of,  270,  271. 
City  Council, 

members,  133,  134. 

meetings,  136,  145. 

functions,  137,  138. 
Civil  Cabinet,  76. 
Classes,  lower,  33. 
Cleveberg,  47. 
Cleves,  20,  21. 
Code,  civil  criminal,  238. 

military  criminal,  239. 

Prussian  general.    (See  General  Code.) 
Colonization,  13,  14,  15,  35. 
Commerce  and  Industry,  71. 
Commissaries,  24. 
Commission,  sanitary,  255. 
Commissions,  special,  140,  141. 
Commune, 

kinds,  128. 

status,  129. 


INDEX 


303 


Commune  (continued), 

director  of,  148. 

powers   regarding  newcomers,    224, 
225. 

executive,  rights  of,  226. 

See  also  City  Commune  and  Rural 

Commune. 
Compensation   rights,   200,   201,    202, 

203. 
Confederation, 

Rhine,  59. 

German,  60. 

North  German,  61. 
Confiscation  of  publications,  230,  231. 
Conflicts  of  jurisdiction,  186,  187. 
Congress  of  Vienna,  35,  59. 

establishes  Confederation,  60. 
Constitution, 

Prussian,  17,  18,  19,  39,  40,  41,  42, 
48,  51,  155,  156,  157,  201,  205,  225. 

German,  62,  63. 

imperial,  234,  235. 
Controversies,  177,  178,  179. 
Corporations,  113. 
Council,  imperial  sanitary,  254. 
Council  of  State,  46,  75,  76. 
Courts, 

provincial,  42. 

supreme  administrative,  77,  78,  176, 
184,  185,  189. 

of  accounts  of  German  Empire,  80. 

special  administrative,  175,  176,  177, 
178,  179,  180,  182. 

Prussian,  187,  188. 

martial,  238. 

special  industrial,  292,  293. 
Cremation,  253. 
Crimes,  official,  200. 

D 

Damages,  resulting  from  acts  of  gov- 
ernment, 200. 

compensation  for,  200,  201. 
Decentralization,  54. 
Deichverband,  242. 
Dike  unions,  242. 
Directorate, 

general,  30,  31,  32. 

collegial,  148. 


Diseases,  245,  246,  247,  248. 
Disintegration, 

of  military  organization,  15,  16,  17. 

under  Frederick  II,  37. 
District  Committee,  102,  103. 

supervision  of,  121. 

duties  of,  137,  143. 

as  court,  183. 

District  Corporation,  92,  93. 
District  government, 

introduced,  48. 

jurisdiction  of,  48,  49. 

departments  of,  48,  49,  273,  274. 

subdivisions  of,  49,  99,  105. 

functions   of   departments  of,    100, 

101. 
District  President, 

supervision  of,  121. 

power  of,  122,  139. 

duties  of,  137,  138. 

functions  of,  142,  143. 

police  authority  of,  161,  226. 
Distriktskommissarien,  127. 
Disziplinarhof,  75. 
Domains,  16. 

Domicile  for  support,  262,  263. 
Dualism,  20. 


Early  feudal  state,  13,  14. 
East  Frisia,  34. 
East  Prussia,  47,  261 . 
Eastern  provinces,  129. 
Education,  267. 

minister  of,  273. 
Election,  135. 
Electorate  classes,  133. 
Emigration,  225. 
Eminent  domain,  201. 
Emperor,  237. 

Empire,  German,  53,  62,  63,  64. 
Empire,  Holy  Roman,  59. 
Enfeoffment,  13,  14. 
Erganzungsverordnungen,  156,  158. 
Executio  ad  faciendum  vel  omittendum, 

168. 

Executio  ad  solvendum,  158,  159. 
Execution,  administrative,  158,  159. 
Expropriation  law,  201,  202. 


304 


INDEX 


Federation,  North  German,  53,  61,  62, 

63- 

Fees,  administration,  142. 
Finances,  Ministry  of,  69. 
Fire,  240,  241. 
Fiskus,  203. 
Floods,  241. 
Food  laws,  249,  250. 
Foreigners,  266. 
Fortbildungsschulen,  274. 
France,  21. 
Francis   II,  Emperor,    abdication    of, 

59- 

Frankfort  on  the  Main,  52. 
government  of,  144,  145. 
Frederick  I,  17. 

Frederick  II,  17,  18,  33,  34,  35,  36. 
Frederick  III,  26,  27. 
Frederick  William  I,  22,   23,   24,   28, 

29,  30,  33- 

Frederick  William  II,  36,  37. 
Frederick  William  III,  37,  50. 
Frederick  William  IV,  50. 
Freedom,  industrial,  44,  45. 
Further  Pomerania,  21. 


Gemeinden,  128. 

Gemeindepolizei,  221. 

Gemeindevertretung,  147. 

Gemeindevorsteher,  147,  148. 

Gendarmerie,  221. 

General  Code  of  1794,  160,  164,  204, 

205,  219,  243. 
Generalkommission,  84. 
Generalkriegskommissar,  23. 
Gentry,  43. 

Gesellenausschuss,  286. 
Gewerbeordnung,  227. 
Gilds,  281-284. 
Golden  Bull,  17. 
"Governments,"  100. 
Grants,  156. 
Gutsbezirke,  150. 
Gutsvorsteher,  150. 
Gymnasia,  275,  276. 


Handwerkskammern,  281,  285. 
Hannover,  52,  57. 

government,  92,  145. 

police  functions,  127. 

law  regulatory,  149. 

electoral  franchise,  150. 
Hardenberg,  Count,  38,  43,  44,  47. 
Health, 

officers,  254,  255. 

protection  of  workmen's,  290,  291, 
Hechingen,  146. 
Helgoland,  93. 
Henry  I,  13. 
Hessen,  52. 
Hessen-Nassau,  57. 

administration,  92. 

organization,  105. 

jurisdiction,  105. 

police  functions,  127. 

law  for,  129. 

act  for,  149. 

relief  union,  261. 
Hochschulen,  276. 
Hohenstaufens,  15. 
Hohenzollern,  17,  81. 

lands  of,  18. 

district,  99. 

organization,  112. 

police  functions,  127. 

government,  145,  146. 

commune  organization,  150. 

principalities,  185. 
Holidays,  288. 
Holstein,  52. 


Imperial  civil  code,  168. 

provisions  of,  197,  198. 
Imperial  code,  240. 

insurance,  288,  293,  299. 
Imperial  criminal  code,  225. 

regarding  public  order,  244. 
Imperial  industrial  code,  280-283. 
Imperial  insurance  office,  295. 
Imperial  law, 

of  1900,  202,  203,  245. 

of  1908,  233. 

See  also  Law  and  Act. 


INDEX 


305 


Infection, 

rules  regarding,  245-248. 
Innungen,  281. 
Innungsverbande,  285. 
Inspection  of  cattle,  252. 
Inspectors,  school,  274. 
Institutions,  94,  95. 
Insurance, 

workmen's,  293. 

rights  to,  295,  296. 

requirement  of,  296. 

exceptions,  296. 

death  or  accident,  298,  299. 
Interior,  Ministry  of,  70. 


Joachim,  Frederick,  20. 
Jurisdiction, 

conflicts  of,  185-188. 

police,  220,  221. 


King,  67,  68. 

Kompetenzgerichtshof,  75. 
Kompetenzkonflikterhebung,  189. 
Konfliktserhebung,  189,  199. 
Krankenkassen,  293. 
Kreisausschuss,  106,  107,  114. 
Kreise,  80. 
Kreistag,  114. 
Kronrat,  73. 


Landarmenverbande,  260. 
Landbiirgermeister,  149. 
Landbiirgermeisterein,  126. 
Landdrostein,  52. 
Landed  classes,  19. 
Landesdirektor,  87,  90. 
Landeshauptmann,  90. 
Landesrate,  91. 
Landgemeinden,  128. 
Landkreise,  87,  106. 
Landrat,  24,  25,  49,  106,  114. 
Landstande,  17. 
Lauenburg,  93. 
Law, 

revision  of,  56,  57. 


of  1872,  regarding  Chamber  of  Ac- 
counts, 78. 

organizatory,  92. 

of  1873,  1875,  1902,  1906,  regarding 
expenses  of  province  corpora- 
tions, 94,  95. 

of  1815,  subdividing  provinces,  99. 

of  1817,  1825,  1883,  denning  status 
of  governments,  100,  101. 

enforcement,  167. 

of  1884,  ministerial  regulation,  172. 

of  1883,  jurisdiction  of  courts,  173, 
177,  180. 

of  1875,  special,  organizing  court 
system,  175. 

of  1847,  conflict  of  jurisdiction,  186. 

imperial,  187,  188,  189. 

of  1854,  "raising  the  conflict,"  189. 

concerning  liability  of  Prussia,  199. 

of  1874,  as  to  expropriation,  201. 

of  1870,  federal,  regarding  citizenship, 
209. 

of  1867,  North  German  Federation, 
223. 

of  1842,  liberty  of  motion  and  abode, 
223,  224. 

of  1851,  liberty  of  press,  226. 

of  1848,  on  dikes  and  diking,  241, 
242. 

of  1879,  food,  249. 

of  1900,  food,  249. 

of  1909,  "cattle  diseases,"  252. 

building,  258. 

of  1008,  regarding  paupers,  259. 

regarding  schools,  267,  268,  269. 

for  working  classes,  278,  279,  280. 

labor,  288. 

regarding  minors,  288,  289. 

regarding  child  labor,  291. 

regarding  woman's  labor,  291,  292. 

See  also  Act. 
Legislation, 

reform,  55. 

classification,  152,  153,  164. 
Legislature,  52. 
Liability,  198,  199. 
Liberty  of  association, 

birth  of,  232. 

protection  to  Germans  only,  236. 
Liberty  of  the  press,  226,  227. 


INDEX 


Liberty  regarding  abode,  223,  224. 
License,  law  regarding,  165,  166. 
Limitations  on  liberty  of  press,  226, 

227. 

Lothar,  13. 
Lower  Rhine  Province,  47. 


M 


Machinery,  judicial,  174. 
Magistral,  32,  40. 

list  of  voters  kept  by,  133. 

powers  of,  134. 

connection  with  council,  136,  137. 

members,  138. 

duties,  139,  140. 

and  tax  assessment,  142. 

meetings,  145. 

police  authority  of,  220. 
Manorial  precinct,  150. 
March,  17,  18,  20,  21. 
Margrave,  18,  19,  20. 
Margraviate,  15,  16,  18. 
Maria  Theresa,  34. 
Mayor,  140,  220. 
Meat,  laws  regarding,  250,  251. 
Meetings,  public,  234-236. 
Military  Cabinet,  76. 
Military    organization    of    Frederick 

William  I,  28,  29. 
Minister  President,  72. 
Ministerialdirektoren,  69. 
Ministers, 

of  justice,  31. 

duties  of,  68. 

of  state,  72,  73,  74. 

of  the  interior,  96,  97,  139. 

powers  of,  96,  97,  98. 

of  finance,  97. 

police  authority  of,  161,  162. 
Ministry,  41. 

of  interior,  finances,  foreign  affairs, 
war  and  justice,  41 . 

number  of,  68. 

spiritual,  educational  and  medical,  70. 

of  royal  household,  71,  72. 
Minors,  236. 

Misdemeanors,  official,  200. 
Monarchy,  absolute,  22. 
Municipal  Government  Act  of  1808,  50. 


N 

Napoleon,  37. 

demands  of,  39. 

overthrow  of,  59. 
Nassau,  52. 

Nassauer  Memorial,  39. 
Naval  Cabinet,  76. 
Nobility,  ruling  class,  33. 
Non-Burgesses,  32. 
North  German  Federation,  224. 

abolishes  restrictions,  279. 
Northmarch,  13,  14. 
Notverordnungen,  156,  157. 
Niirnberg,  17. 


Oberamtman,  113. 
Oberamtsbezirke,  112. 
Oberprasident,  47. 

why  created,  81. 

functions,  82,  83. 
Oberrealschulen,  275. 
Oberregierungsrate,  100. 
Oberverwaltungsgericht,  75,  77. 
Oberzolldirektion,  84. 
Officers,  204,  205,  206,  207. 

duties  and  obligations,  210,  211. 

punishment  of,  212. 

discipline  of,  214. 

protection  and  honorary  rights,  215, 
216. 

building,  258. 

insurance,  294. 
Ordentliche  Professoren,  277. 
Orders,  special,  163,  164. 
Ordinance, 

internal,  153,  154. 

police,  162. 

of  local  self-administration,  162,  163. 

of  1899,  1 68. 

of  1808,  169. 

of  1883,  169,  170,  171. 
Ordinances,  general,  153,  154. 
Ordnungsstrafen,  218. 
Ortsarmenverbande,  260. 
Otto  I,  13. 
Otto  III,  13. 
Overlords,  15,  16,  17. 


INDEX 


307 


Paupers, 

relief  of,  259,  260. 

rights  of  protests  of,  262. 
Peace  of  Westphalia,  21. 

of  Tilsit,  38. 
Peasants, 

colonization  of,  14. 

taxes  of,  29. 

rights  of,  45. 

Permits,  building,  256,  257,  258. 
Poisons,  253. 
Poland,  21,  26,  34,  37. 
Police, 

ordinances,  158-162,  240. 

orders,  164,  165,  194. 

definition  of  term,  218,  219. 

security,  222,  223. 

measures  to  preserve  order,  237. 

power  of,  240,  241,  243. 
Polizeiprasidum,  141,  220. 
Polizei  verordnungen,  158. 
Pomerania,  26,  55,  57. 
Poor  relief,  259. 

Posen,  57,  58,  92,  112,  127,  129. 
Posters  and  placards,  231. 
Power,  supervisory,  65,  66. 
Prague  Treaty,  60,  61. 
Precinct, 

police,  123. 

director,  124,  125. 

committee,  125,  126. 

manorial,  130,  131. 

powers,  149. 

Presidents,  superior,  31,  41,  42. 
Primogeniture,  18. 
Privy  Cabinet,  76,  77. 
Privy  Council,  20,  26,  27,  28,  31. 
Privy  Court  Chamber,  26. 
Proceedings, 

oral,  181,  182. 

against  administration,  196,  197 
Professors,  278. 

Property  owner's  duty,  243,  244. 
Protection, 

individual  rights  for,  191—197. 

for  workmen,  287,  288. 
Protests, 

election,  134,  138,  139. 

rights  to,  192,  193,  194. 


Province  Assembly,  87,  88,  89,  98. 
Province  Boards,  84,  85. 
Province  Committee,  89,  90,  91. 
Province  Corporation,   86,  87,  93,  94, 

95,  96,  97- 

Province  Council,  83. 
supervision  of,  121. 
Province  Director,  90,  91. 
Province  local  administration,  85,  86. 
Province  President,  81,  82,  83, 121, 161. 
Provinces, 
government  of,  47. 
number  of,  80,  81. 
Provinzialansschuss,  87,  89. 
Provinziallandtag,  83,  87. 
Provinzialrat,  81,  83,  102. 
Provinzialschulkollegium,  84. 
Prussia,  14,  20,  21,  22,  23,  26,  34,  36, 

37,  38,  45,  47,  50,  Si,  52,  53,  54,  55, 

57,  59,  60,  62,  80,  104,  203,  205, 

260,  261. 

Prussian  general  code,  202,  267. 
Prussian  legislature,  240. 
Prussian  nearer  Pomerania,  28. 
Publications,  227,  228,  229,  230,  231. 
Public  Works,  Ministry  of,  70. 
Punishment  for  misconduct  in  office, 

212,  213,  214,  215. 


Radicalism,  51. 
Ravensberg,  21. 
Reaction,  45. 
Realgymnasien,  275. 
Rechtsverordnungen,  153. 

character,  154. 

classes,  156. 
Reforms  (of  Baron  von  Stein),  40,  51, 

53-58. 

Regierung,  99. 
Regierungsassessor,  208. 
Regierungsassessoren,  100. 
Regierungsbezirke,  80,  99. 
Regierungsprasident,  85,  100. 
Regierungsreferendar,  208. 
Regierungsrate,  100. 
Relief  for  sick,  297. 
Remuneration  of  officers,  216. 
Requirements,  public  office,  207,  208, 
209. 


INDEX 


Restrictions  on  press,  226. 
Review,  administrative,  172-174. 
Rhine  Province,  47,  50,  57,  112,    144, 

149. 

Rigaer  Memorial,  44. 
Rights,  individual,  195. 
Royal  Prussian  States,  27. 
Rural  Circles, 

provisions  for,  107. 

state  control  over,  no,  in. 

organs  of  corporation,  114. 
Rural  Commune,  43,  49. 

Act,  58,  146,  147,  148,  149,  260. 

incorporation  of,  130,  131. 

school  management  of,  271. 


Safeguards,  240. 

Saxons,  13. 

Saxony,  21,  55,  57. 

Schatzrate,  92. 

Schleswig,  52. 

Schleswig-Holstein,  93,  99,  126,  149. 

Schoffen,  138,  148,  285. 

Schools,  268,  269,  270,  271,  276,  278. 

Schulverbande,  269. 

Schulzmanschaft,  221. 

Selbstandige  Gutsbezirke,  128. 

Self-administration,  47,  48,  55,  58. 

Seven  Years'  War,  34. 

Siege,  state  of,  237,  238,  239. 

Sigismund,  John,  21. 

Sigmaringen,  145. 

Silesia,  34,  55,  57. 

Slavs,  13,  14. 

Special  codes,  240. 

Staatsministerium,  72. 

Staatsrat,  75. 

Staatssekretar,  69. 

Stadtausschuss,  in. 

Stadtgemeinden,  128. 

Stadtkreise,  87,  109. 

Stadtverordneten  Versammlung,  132. 

State,  154,  155,  221. 

Stein,  Baron  von,  38,  39,  40,  41,  42,  43, 

128. 

Streets,  cleansing  of,  253. 
Subvention  Act,  56. 
Supervision, 
by  empire,  64,  65,  66. 


by  state,  122,  142,  143. 
of  press,  227. 
school,  276. 

Supreme  Chamber  of  Accounts,  78,  79, 
80. 


Tax, 

officials,  24,  25. 

under  Frederick  William  I,  29. 

province  corporation,  95,  96. 

levying  of,  141. 

committee,  142. 
Teachers, 

state  officers,  271. 

election  of,  272. 

private,  273. 

special,  273. 

Termination  of  office,  116,  117. 
Territories,  coordination  of,  52,  53. 
Thirty  Years'  War,  22,  23,  24. 
Three-class  system  of  voters,  114,  115. 
Trade,  278,  279,  280,  281. 
Tradesmen's  chambers  establishment, 
285. 

functions,  286. 

cost  of,  287. 
Treaties,  military  and  commercial,  61. 

framed  with  southern  states,  62. 
Treaty,  ancient,  34. 

U 

Union,  special,  151. 
Union  Committee,  151. 
Unions,  relief,  260-266. 
Universities,  277,  278. 
Unterstiitzungswohnsitz,  262. 


Vaccination  law,  248,  249. 
Variations,  92,  93. 
Vassals,  16. 

Verbandsansschuss,  151. 
Verbandsvorsteher,  151. 
Verleihung,  166. 
Verordnungen,  153. 
Versicherungsanstalten,  294. 
Verwaltungsgerichtsbarkeit,  174- 


INDEX 


309 


Verwaltungsklage,  192,  195. 
Verwaltungstreitverfahren,  172,  174. 
Verwaltungsverordnungen,  153. 
Veterinarians,  255. 
Vogteien,  15. 
Vortragende  Rate,  69. 

W 

War, 

against  Napoleon,  45. 
Danish,  52. 


Austrian,  52,  60. 

Franco-Prussian,  53,  61,  62. 
Westphalia,  50,  57,  112,  129,  144,  149. 
West  Prussia,  47. 
William  I,  52. 
Workmen,  289,  290. 


Zweckverbande,  150,  151. 
Zweckverbande  and   Samtgemeinden, 
128. 


T 


HE  following  pages  contain  advertisements  of  a 
few  of  the  Macmillan  books  on  kindred  subjects 


The  Government  of  American  Cities 

By  WILLIAM   BENNETT   MUNRO,  PH.D.,  LL.B.,  Pro- 
fessor of  Municipal  Government  in  Harvard  University 

Cloth,  8vo,  $2.2 j;  by  mail,  $2.42 

"  It  is  doubtful  if  a  more  scholarly  and  unprejudiced  presentation  of  the 
tendencies  of  the  times,  showing  the  faults  and  advantage  of  our  systems  of 
municipal  management,  has  before  appeared.  The  book  will  be  appreci- 
ated everywhere."  —  The  Boston  Globe, 

"...  a  fresh  contribution  to  a  weighty  and  important  public  discus- 
sion."—  Philadelphia  North  American. 


By  THE   SAME  AUTHOR 

The  Government  of  European  Cities 

Cloth,  8vo,  $2.00  net;  by  mail,  $2.19 

"  The  most  effective  work  now  done  in  political  science  is  that  going  on  in 
the  field  of  applied  politics.  Avoiding  abstract  principles  and  a  priori 
speculation,  it  addresses  itself  to  examination  of  the  actual  organization  of 
public  authority  and  of  the  way  in  which  governmental  function  is  carried 
out.  In  'The  Government  of  European  Cities'  (Macmillan),  Prof.  Wil- 
liam Bennett  Munro  of  Harvard  has  made  a  valuable  addition  to  this  liter- 
ature. He  gives  a  detailed  account  of  the  way  in  which  municipal  govern- 
ment is  formed  and  carried  on  in  France,  Germany,  and  England.  The 
style  is  clear,  straightforward,  and  unpretentious,  and  the  treatment  is  stead- 
ily confined  to  the  subject  in  hand  without  any  attempt  to  point  a  moral  or 
aid  a  cause.  At  the  same  time  references  to  American  municipal  methods 
frequently  occur  as  incidents  of  the  explanation  of  European  procedure, 
and  these  add  to  the  value  of  the  book  for  American  readers.  The  writing, 
while  succinct,  is  copious  in  detail,  and  only  administrative  experts  in  the 
countries  respectively  considered  could  check  off  all  the  statements  made ; 
but  the  work  itself  affords  intrinsic  evidence  of  its  painstaking  accuracy. 
One  cannot  read  the  book  without  being  deeply  impressed  by  the  essential 
simplicity  of  the  principles  upon  which  European  municipal  government  is 
constituted."  —  The  Nation. 


THE    MACMILLAN   COMPANY 

Publishers  64-66  Fifth  Avenue  New  York 


Social  Progress  in  Contemporary  Europe 

By  FREDERIC  AUSTIN   OGG,  PH.D.,  Assistant  Profes- 
sor of  History,  Simmons  College 

Cloth,  $1.50  net ;  postpaid,  $1.63 

"The  term  'social*  has  been  interpreted  by  Professor  Ogg  to  comprise 
anything  which  bears  upon  the  status  and  opportunity  of  the  average  man. 
There  is  not  one  country  in  Europe  which  in  the  past  four  or  five  genera- 
tions has  not  progressed  considerably  along  this  line,  and  Professor  Ogg's 
purpose  has  been  to  explain  the  origin  and  character  of  some  of  the  social 
changes  which  have  taken  place.  The  ground  which  he  covers  is  the  cen- 
tury and  a  quarter  which  has  elapsed  since  the  uprising  of  1789  in  France. 
Professor  Ogg  has  done  a  very  great  and  much  needed  service  to  the  pub- 
lic in  thus  bringing  into  small  and  easily  getable  form  so  much  information 
about  the  antecedents  of  our  present  social  conditions  and  tendencies.  All 
of  it  is  of  the  sort  that  ought  to  be  familiar  to  whoever  presumes  to  have 
opinions  upon  economic  questions,  and  particularly  to  all  who  would  direct 
or  influence  the  impressionable  public.  This  volume  should  be  in  the 
hands  of  all  who  would  like  to  build  for  their  opinions  some  foundation 
more  solid  than  prejudice  and  emotion."  —  New  York  Times. 


By  WILLIAM   ARCHIBALD   DUNNING,  PH.D.,  Profes- 
sor of  History  in  Columbia  University. 


A  History  of  Political  Theories 


2  Volumes 

I  —  ANCIENT  AND  MEDIEVAL 
II  —  FROM  LUTHER  TO  MONTESQUIEU 

Cloth,  8vo,  each  $2.50  net 

The  successive  transformations  through  which  the  political  consciousness 
of  men  has  passed  from  early  antiquity  to  modern  times  are  stated  in  a 
clear,  intelligible  manner,  and  to  aid  in  a  fuller  study  of  the  subject  refer- 
ences are  appended  to  each  chapter  covering  the  topics  treated  therein.  At 
the  end  of  each  volume  has  been  placed  an  alphabetical  list  containing  full 
information  as  to  all  the  works  referred  to,  together  with  many  additional 
titles. 


THE  MACMILLAN  COMPANY 

Publishers  64-66  Fifth  Avenue  New  York 


The  Government  of  England 


By  A.  LAWRENCE  LOWELL,  President  of  Harvard  Uni- 
versity ;  Formerly  Professor  of  the  Science  of  Government ; 
Author  of  "  Colonial  Civil  Service,"  etc. 

In  two  volumes.  Bound  in  the  style  of  Bryce's  "American 
Commonwealth." 

New  edition,  cloth,  8vo,  $4.00  net 

The  New  York  Sun  calls  it :  — 

"  The  remarkable  work  which  American  readers,  including  even  those  who 
suppose  themselves  to  be  pretty  well  informed,  will  find  indispensable 
.  .  . ;  it  deserves  an  honored  place  in  every  public  and  private  library 
in  the  American  Republic."  —  M.  W.  H. 

"  Professor  Lowell's  book  will  be  found  by  American  readers  to  be  the 
most  complete  and  informing  presentation  of  its  subject  that  has  ever  fallen 
in  their  way.  .  .  .  There  is  no  risk  in  saying  that  it  is  the  most  impor- 
tant and  valuable  study  in  government  and  politics  which  has  been  issued 
since  James  Bryce's  '  American  Commonwealth,'  and  perhaps  also  the 
greatest  work  of  this  character  produced  by  an  American  scholar." —  Phila- 
delphia Public  Ledger. 

"  It  is  the  crowning  merit  of  the  book  that  it  is,  like  Mr.  Bryce's,  emphati- 
cally a  readable  work.  It  is  not  impossible  that  it  will  come  to  be  recog- 
nized as  the  greatest  work  in  this  field  that  has  ever  been  produced  by  an 
American  scholar."  —  Pittsburg  Post. 

"  The  comprehensiveness  and  range  of  Mr.  Lowell's  work  is  one  of  the 
reasons  for  the  unique  place  of  his  '  Government  of  England '  —  for  its 
place  is  in  a  class  by  itself,  with  no  other  books  either  by  British  or  non- 
British  authors  to  which  it  can  be  compared.  Another  reason  is  the  in- 
sight, which  characterizes  it  throughout,  into  the  spirit  in  which  Parliament 
and  the  other  representative  institutions  of  England  are  worked,  and  the 
accuracy  which  so  generally  characterizes  definite  statements ;  all  contribute 
to  make  it  of  the  highest  permanent  value  to  students  of  political  science 
the  world  over."  — EDWARD  PORRITT  in  The  Forum. 


THE    MACMILLAN   COMPANY 

Publishers  64-66  Fifth  Avenue  New  Tork 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 

:      -""     "          r 


JJBRARY 
LD 

MAY  2  4  1967 
MAR  2  31970  4  g 


11981 


REC.CIR 


LD  21A-60m-7,'66 
(G4427slO)476B 


General  Library 

University  of  California 

Berkeley 


-J" 


THE  UNIVERSITY  OF  CALIFORNIA  LIBRARY 


